>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Ignacio ARELLANO-BANUELOS, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-11490 Document: 00514999266 Page: 1 Date Filed: 06/17/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-11490 FILED\\n June 17, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nIGNACIO ARELLANO-BANUELOS,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Ignacio Arellano-Banuelos was convicted by a jury of illegal reentry. On\\nappeal, he argues that his confession was admitted in violation of Miranda v.\\nArizona, 384 U.S. 436 (1966), he was denied the opportunity to present a\\nstatute of limitations defense, the district court erred in striking a prospective\\njuror for cause, and the admission of a certificate of non-existence of record\\nviolated his rights under the Confrontation Clause.\\n In an earlier opinion, we remanded this case to the district court for\\nadditional findings as to whether Arellano-Banuelos was “in custody” for\\npurposes of Miranda. See United States v. Arellano-Banuelos, 912 F.3d 862\\n(5th Cir. 2019). Our prior opinion recounts the pertinent factual background.\\n\\f Case: 17-11490 Document: 00514999266 Page: 2 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nSee id. at 864–65. After considering the district court’s findings and the parties’\\nsupplemental briefs, we now affirm.\\n I.\\n A.\\n Under Miranda, an individual subjected to “in-custody interrogation”\\nmust first “be warned that he has a right to remain silent, that any statement\\nhe does make may be used as evidence against him, and that he has a right to\\nthe presence of an attorney, either retained or appointed.” 384 U.S. at 444–45.\\nThese safeguards are required “[b]ecause custodial police interrogation, by its\\nvery nature, isolates and pressures the individual,” and “heightens the risk\\nthat an individual will not be accorded his privilege under the Fifth\\nAmendment not to be compelled to incriminate himself.” Dickerson v. United\\nStates, 530 U.S. 428, 435 (2000) (cleaned up).\\n Arellano-Banuelos’s Miranda claim arises out of an August 2015\\ninterview with Norberto Cruz, a U.S. Immigration and Customs Enforcement\\n(ICE) agent. At the time of the interview, Arellano-Banuelos was serving a\\nsentence of 15 months’ imprisonment on unrelated state offenses. Cruz and\\ntwo other ICE agents traveled to the state prison to interview 23 inmates,\\nincluding Arellano-Banuelos. The inmates were escorted to the office in groups\\nof five. A prison guard stood at the door of the office, which remained open.\\nCruz and another ICE agent conducted simultaneous interviews at separate\\ntables, and a third agent photographed and fingerprinted the inmates after the\\nconclusion of their interviews. These interviews ordinarily lasted between ten\\nand thirty minutes, although the parties agree that Arellano-Banuelos’s\\ninterview took about ten to fifteen minutes.\\n Cruz interviewed Arellano-Banuelos about his immigration status and\\npast deportation without providing complete Miranda warnings. Over the\\ncourse of this interview, Arellano-Banuelos acknowledged his alienage, his\\n 2\\n\\f Case: 17-11490 Document: 00514999266 Page: 3 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nprior removal, and his lack of permission from the Attorney General to reenter\\nthe United States. Arellano-Banuelos was later charged with illegal reentry,\\nand he moved to suppress his admissions to Cruz. The district court denied the\\nmotion after finding that the August 2015 interview “was not a custodial\\ninterrogation for Miranda purposes.”\\n In a prior opinion, we held that this interview was an “interrogation”\\nunder Miranda because Cruz should have known that his questioning was\\n“reasonably likely to elicit an incriminating response from the suspect.”\\nArellano-Banuelos, 912 F.3d at 866 (quoting Rhode Island v. Innis, 446 U.S.\\n291, 301 (1980)). We remanded to the district court for additional findings on\\nthe issue of Arellano-Banuelos’s custodial status. Id. at 869. After hearing\\nfurther testimony and argument, the district court concluded that Arellano-\\nBanuelos was not in custody under Miranda during the August 2015 interview.\\n We review the district court’s “factual findings for clear error and the\\nultimate constitutionality of law enforcement action de novo.” United States v.\\nRobinson, 741 F.3d 588, 594 (5th Cir. 2014). “The clearly erroneous standard\\nis particularly deferential where denial of the suppression motion is based on\\nlive oral testimony because the judge had the opportunity to observe the\\ndemeanor of the witnesses.” United States v. Ortiz, 781 F.3d 221, 226 (5th Cir.\\n2015) (cleaned up). Further, we consider “the evidence in the light most\\nfavorable to the prevailing party, which in this case is the government.” United\\nStates v. Wright, 777 F.3d 769, 773 (5th Cir. 2015) (quoting United States v.\\nSantiago, 410 F.3d 193, 197 (5th Cir. 2005)).\\n B.\\n Custody for purposes of Miranda “is a term of art that specifies\\ncircumstances that are thought generally to present a serious danger of\\ncoercion.” Howes v. Fields, 565 U.S. 499, 508–09 (2012). This inquiry “is an\\nobjective one—the subjective intent of the questioners and the subjective fear\\n 3\\n\\f Case: 17-11490 Document: 00514999266 Page: 4 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nof the questioned person are irrelevant.” United States v. Melancon, 662 F.3d\\n708, 711 (5th Cir. 2011). We first consider whether “‘there is a ‘formal arrest\\nor restraint on freedom of movement’ of the degree associated with a formal\\narrest.” Maryland v. Shatzer, 559 U.S. 98, 112 (2010) (quoting New York v.\\nQuarles, 467 U.S. 649, 655 (1984)). The Supreme Court has observed that\\n“[t]his test, no doubt, is satisfied by all forms of incarceration.” Id. Yet, “the\\nfreedom-of-movement test identifies only a necessary and not a sufficient\\ncondition for Miranda custody.” Id. Courts also consider “the additional\\nquestion [of] whether the relevant environment presents the same inherently\\ncoercive pressures as the type of station house questioning at issue in\\nMiranda.” Fields, 565 U.S. at 509.\\n Although Arellano-Banuelos was incarcerated at the time of the August\\n2015 interview, the Supreme Court has instructed that “imprisonment alone\\nis not enough to create a custodial situation within the meaning of Miranda.”\\nId. at 511. The Supreme Court drew this conclusion in part because of the\\ndifferences in circumstances between a prisoner serving a lawful sentence and\\na suspect who “is arrested in his home or on the street and whisked to a police\\nstation for questioning.” Id. “[T]he ordinary restrictions of prison life, while no\\ndoubt unpleasant, are expected and familiar and thus do not involve the same\\n‘inherently compelling pressures’ that are often present when a suspect is\\nyanked from familiar surroundings in the outside world and subjected to\\ninterrogation in a police station.” Id. (quoting Shatzer, 559 U.S. at 103).\\nMoreover, “[s]entenced prisoners, in contrast to the Miranda paradigm, are not\\nisolated with their accusers,” and their imprisonment “is relatively\\ndisconnected from their prior unwillingness to cooperate in an investigation.”\\nShatzer, 559 U.S. at 113.\\n Of course, prisoners sometimes are in custody for Miranda purposes. “An\\ninmate who is removed from the general prison population for questioning and\\n 4\\n\\f Case: 17-11490 Document: 00514999266 Page: 5 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nis thereafter subjected to treatment in connection with the interrogation that\\nrenders him ‘in custody’ for practical purposes will be entitled to the full\\npanoply of protections prescribed by Miranda.” Fields, 565 U.S. at 514 (cleaned\\nup); see also Melancon, 662 F.3d at 711 (explaining that a “prison inmate is not\\nautomatically always ‘in custody’ within the meaning of Miranda, although the\\nprison setting may increase the likelihood that an inmate is in ‘custody’ for\\nMiranda purposes”) (cleaned up). The custody determination must “focus on\\nall of the features of the interrogation,” including “the language that is used in\\nsummoning the prisoner to the interview and the manner in which the\\ninterrogation is conducted.” Fields, 565 U.S. at 514.\\n In Fields, the Supreme Court held that a prisoner was not in custody\\nunder Miranda when he was interviewed by two sheriff’s deputies regarding\\nallegations of sexual abuse of a child. Id. at 502–03, 514. The Court\\nacknowledged several factors that could support a finding of custody, including\\nthat Fields “was not advised that he was free to decline to speak with the\\ndeputies,” the “interview lasted for between five and seven hours,” the deputies\\nwere armed, and one of the deputies “used a very sharp tone” and once used\\nprofanity. Id. at 515. Other offsetting circumstances, however, led the Court to\\ndetermine that Fields was not in custody. Id. “Most important, [Fields] was\\ntold at the outset of the interrogation, and was reminded again thereafter, that\\nhe could leave and go back to his cell whenever he wanted.” Id. Additionally,\\nFields “was not physically restrained or threatened,” he “was interviewed in a\\nwell-lit, average-sized conference room,” “the door to the conference room was\\nsometimes left open,” and he “was offered food and water.” Id. The Court\\nconcluded that “these objective facts are consistent with an interrogation\\nenvironment in which a reasonable person would have felt free to terminate\\nthe interview and leave.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652,\\n664–65 (2004)).\\n 5\\n\\f Case: 17-11490 Document: 00514999266 Page: 6 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\n C.\\n In critical respects, Arellano-Banuelos’s August 2015 ICE interview had\\nfewer hallmarks of Miranda custody than the interview at issue in Fields. 1 The\\ninterview was much shorter—lasting ten to fifteen minutes rather than five to\\nseven hours. See id. at 515. Multiple people were present in the interview room,\\nincluding another prisoner, and Arellano-Banuelos was not isolated with Cruz.\\nCf. Miranda, 384 U.S. at 476 (emphasizing the “compelling influence” of\\n“lengthy interrogation or incommunicado incarceration”). The ICE agents were\\nnot armed, and the prison guard did not have a firearm. Cf. Fields, 565 U.S. at\\n515. Although Cruz stated that he knew Arellano-Banuelos had been\\npreviously removed, he did not raise his voice during the interview, use a sharp\\ntone of voice, or use profanity. Cf. id. at 503, 515.\\n Other circumstances are similar to the facts presented in Fields.\\nArellano-Banuelos was not restrained during the interview, but he was\\nescorted to the interview by a prison guard and required to pass through locked\\ndoors. See id. at 502–03; see also id. at 513 (noting that a prisoner may be\\n“taken, under close guard, to the room where the interview is to be held” but\\n“such procedures are an ordinary and familiar attribute of life behind bars”).\\nArellano-Banuelos was not told in advance that he could decline the interview,\\nand the district court found that a reasonable person in his position would have\\nbelieved he was required to attend the interview. See id. at 515 (noting that\\nFields “did not invite the interview or consent to it in advance, and he was not\\nadvised that he was free to decline to speak with the deputies”).\\n Arellano-Banuelos points to several factors that he asserts distinguishes\\nhis situation from the interrogation at issue in Fields. First, and most\\n\\n\\n 1 We base our analysis on the district court’s factual findings as to what occurred\\nduring the interview. Neither party argues that those findings are clearly erroneous, and we\\nperceive no clear error.\\n 6\\n\\f Case: 17-11490 Document: 00514999266 Page: 7 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nsignificantly, he emphasizes that he was never explicitly told he was free to\\nleave the interview room. In Fields, by contrast, the Supreme Court\\nunderscored that the “[m]ost important” factor in its custody determination\\nwas that the prisoner “was told that he was free to end the questioning and to\\nreturn to his cell.” Id. at 515–17. This type of straightforward advisement\\nwould certainly have strengthened the government’s case. See Wright, 777\\nF.3d at 776 (holding that a suspect was not in custody under Miranda in part\\nbecause of the “crucial” fact that he was repeatedly told “that he was ‘free to\\nleave’ and that he ‘wasn’t under arrest’”); see also Ortiz, 781 F.3d at 231\\n(explaining that statements that a suspect “was not under arrest . . . would\\nsuggest to a reasonable person that he was free to leave, but they are less clear\\nthan the statements in Wright, which answered the question directly”). Yet the\\nabsence of an explicit statement that an interviewee is free to leave does not\\ncompel a finding of Miranda custody. Other statements and circumstances\\nmay similarly suggest to a reasonable person that he can choose to end the\\nquestioning and leave. See Ortiz, 781 F.3d at 231–33.\\n Here, Cruz told Arellano-Banuelos that his statement had to be\\nvoluntary and that the interview would terminate if he chose not to speak with\\nCruz. Cruz also reviewed a form with Arellano-Banuelos advising him that his\\n“statement must be freely and voluntarily given” and that any statement “may\\nbe used against [him] in any administrative or criminal proceeding.” 2 Arellano-\\nBanuelos contends that such warnings are inadequate because Miranda’s\\nprotections apply even absent proof that a statement was in fact involuntary.\\n\\n\\n\\n 2 Although Arellano-Banuelos presented a different account of Cruz’s\\nstatements at the suppression hearing, he does not dispute on appeal the district court’s\\nfindings as to what was said during the interview. We note that the district court made no\\nadverse credibility determinations, and we therefore do not rely on the government’s\\nsuggestion that we should disbelieve Arellano-Banuelos’s testimony because he has in the\\npast received disciplinary infractions.\\n 7\\n\\f Case: 17-11490 Document: 00514999266 Page: 8 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nWe agree that telling an interviewee that his statement must be voluntary is\\ninsufficient, alone, to satisfy the concerns underlying Miranda. See, e.g.,\\nDickerson, 530 U.S. at 442 (holding that a multi-factor test focused on\\n“determining the voluntariness of a suspect’s confession” is not an “adequate\\nsubstitute for the warnings required by Miranda”). Such advisories are\\nnonetheless relevant factors in assessing the interview environment.\\n Moreover, Cruz did more than advise Arellano-Banuelos that his\\nstatement must be voluntary and that any statements he made could be used\\nagainst him. Cruz testified that he tells inmates that they do not have to speak\\nwith him and that, if they do not want to talk to him, the interview will end.\\nThe district court found that Cruz explained this to Arellano-Banuelos. Given\\nthe circumstances of the August 2015 ICE visit, with multiple inmates being\\ninterviewed and processed on a tight time frame, the clear implication of\\nending the interview is that Arellano-Banuelos could then leave and return to\\nhis ordinary life in the prison. 3 A reasonable inmate would not expect to be\\nrequired to stay in the office after the termination of the interview. Indeed, two\\nother inmates did refuse to answer Cruz’s questions on the day of Arellano-\\nBanuelos’s interview, and their interviews terminated. In this context, we\\nbelieve that the objective circumstances of the interview were “consistent with\\nan interrogation environment in which a reasonable person would have felt\\nfree to terminate the interview and leave.” Fields, 565 U.S. at 515 (quotation\\nomitted).\\n Arellano-Banuelos highlights other aspects of the interview that he\\ncontends created an unacceptable risk of coercion. He notes that he was placed\\nin a holding cell prior to the interview, he was required to stand in the hallway\\n\\n\\n 3 We emphasize that officer statements must be interpreted in context. In a\\ndifferent interrogation environment, the statement that someone is free to terminate an\\ninterview may not signify that he is free to leave.\\n 8\\n\\f Case: 17-11490 Document: 00514999266 Page: 9 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nbefore the interview without leaning on anything, and he was not given a\\nchance to use the restroom. Arellano-Banuelos also emphasizes, and the\\ndistrict court found, that the administrative building where the interviews\\nwere held experienced electrical problems that caused the lights to flicker and\\ninterfered with the air conditioning system. Cruz testified that the office was\\nvery hot and he wanted to get through the interviews as quickly as possible.\\nThese facts indicate that the interview process was uncomfortable, and provide\\nsome support for Arellano-Banuelos’s custody argument. Cf. id. at 515 (noting\\nthat Fields “was ‘not uncomfortable’” in the interview room). Critically,\\nhowever, these conditions were not tied to Arellano-Banuelos’s cooperation\\nwith Cruz. As discussed above, a reasonable inmate in Arellano-Banuelos’s\\nposition would have believed he could terminate the interview and leave the\\noffice. This exit option substantially reduces the coercive pressures of an\\nunpleasant interview environment.\\n Finally, Arellano-Banuelos contends that his situation is different from\\nthat of Fields because Cruz had “the authority to affect the duration of his\\nsentence.” See id. at 512. Specifically, Arellano-Banuelos was told that if he\\ncooperated, this would reduce the amount of time he might spend in ICE\\ndetention before his removal from the United States. This offer may have given\\nArellano-Banuelos some “reason to think that the listeners ha[d] official power\\nover him.” Id. at 512 (quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).\\nThere is no suggestion in the record, however, that Cruz had any authority to\\ninfluence the length of Arellano-Banuelos’s state prison sentence. Unlike a\\nsuspect who “may be pressured to speak by the hope that, after doing so, he\\nwill be allowed to leave and go home,” the only benefit that Cruz could offer\\nwas a speedier deportation once Arellano-Banuelos completed his state\\nsentence. Id. at 511. In light of other factors pointing to an absence of custody,\\n\\n\\n 9\\n\\f Case: 17-11490 Document: 00514999266 Page: 10 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\nsuch an offer does not create the “inherently coercive” interview environment\\ncontemplated by Miranda. Id. at 509.\\n Considering all the circumstances of the August 2015 interview, and\\nviewing the evidence in the light most favorable to the government, we hold\\nthat Arellano-Banuelos was not in custody for purposes of Miranda. We\\ntherefore affirm the district court’s denial of the motion to suppress.\\n II.\\n Arellano-Banuelos next contends that the district court erroneously\\nprevented him from presenting a statute of limitations defense to the jury. The\\nstatute of limitations for illegal reentry is five years. 18 U.S.C. § 3282(a). The\\nlimitations period “begins to run at the time the alien is ‘found,’ barring\\ncircumstances that suggest that the INS should have known of his presence\\nearlier.” United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996).\\nArellano-Banuelos was indicted in May 2016. Thus, the relevant question is\\nwhether Arellano-Banuelos was “found” in the United States before May 2011.\\n For an alien to be “found” in the United States, the “alien’s physical\\npresence must be discovered and noted by immigration authorities and the\\nillegality of the alien’s presence must be reasonably attributable to\\nimmigration authorities through the exercise of typical law enforcement\\ndiligence.” United States v. Compian-Torres, 712 F.3d 203, 207 (5th Cir. 2013);\\nsee also Santana-Castellano, 74 F.3d at 597 (explaining that immigration\\nauthorities should know of an alien’s presence if, for example, “he reentered\\nthe United States through an official border checkpoint in the good faith belief\\nthat his entry was legal”). Arellano-Banuelos sought to present a statute of\\nlimitations defense through evidence that he filed income tax returns and that\\nhe put his name on his son’s birth certificate.\\n\\n\\n\\n\\n 10\\n\\f Case: 17-11490 Document: 00514999266 Page: 11 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\n The district court’s decision to admit or exclude evidence is reviewed for\\nabuse of discretion. 4 See United States v. Walker, 410 F.3d 754, 757 (5th Cir.\\n2005). Here, the district court properly excluded Arellano-Banuelos’s proposed\\nevidence as legally irrelevant. We held in Compian-Torres that knowledge of\\nan alien’s presence by other government officials, including state or federal\\nauthorities, is not imputed to immigration authorities. See 712 F.3d at 207–08.\\nArellano-Banuelos attempts to distinguish Compian-Torres as a case about the\\nsufficiency of the evidence rather than the exclusion of evidence. But the court\\nin Compian-Torres characterized the issue presented as “a pure question of\\nlaw,” and proceeded to resolve the legal question of what it means for an\\nimmigrant to be “found” in the United States. Id. at 207. Under this caselaw,\\nthe district court correctly concluded that Arellano-Banuelos’s tax returns and\\nhis son’s birth certificate are not probative of when he was found in the United\\nStates by immigration authorities.\\n For the same reasons, the district court did not abuse its discretion in\\nrefusing to instruct the jury on a statute of limitations defense. See United\\nStates v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017) (noting the district court’s\\n“substantial latitude in formulating jury instructions”). There was no evidence\\nin the trial record that immigration authorities had actual or constructive\\nknowledge of Arellano-Banuelos’s presence in the United States before May\\n2011. See United States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996) (explaining\\nthat the district court may “refuse to give a requested instructor that lacks\\nsufficient foundation in the evidence”). We perceive no error in the district\\ncourt’s rulings on the statute of limitations.\\n\\n\\n\\n 4 The government asserts that Arellano-Banuelos may have forfeited his\\nchallenge to the district court’s exclusion of evidence because he did not attempt to introduce\\nthe evidence at trial. Because we find no error in the district court’s ruling under any\\nstandard of review, we need not address the forfeiture issue.\\n 11\\n\\f Case: 17-11490 Document: 00514999266 Page: 12 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\n III.\\n Arellano-Banuelos’s challenge to jury selection is similarly unavailing.\\nThe district court struck a prospective juror for cause after the juror stated\\nthat he would have difficulty being fair and impartial because he believed that\\nthe immigration laws were too harsh. “We review the district court’s ruling as\\nto juror impartiality only for manifest abuse of discretion.” United States v.\\nMunoz, 15 F.3d 395, 397 (5th Cir. 1994). Moreover, “[i]n noncapital cases,\\nremoval of a venire member generally is not grounds for reversal unless ‘the\\njurors who actually sat were not impartial within the meaning of the Sixth\\nAmendment.’” United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998)\\n(quoting United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.\\n1994)). Arellano-Banuelos has not shown that the district court manifestly\\nabused its discretion in striking the prospective juror, nor has he offered any\\nbasis to question the impartiality of the jury empaneled in his case.\\n IV.\\n For the first time on appeal, Arellano-Banuelos argues that the\\nadmission of a certificate of non-existence of record (CNR) violated his rights\\nunder the Confrontation Clause. The CNR certified that there is no record that\\nArellano-Banuelos received permission to return to the United States following\\nhis prior deportation. Because Arellano-Banuelos did not object to the\\nadmission of the CNR, our review is for plain error. See United States v.\\nMartinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010). We will find plain error only\\nif, among other factors, the district court made a “clear or obvious” error.\\nRosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018).\\n The Confrontation Clause of the Sixth Amendment guarantees a\\ncriminal defendant the right to cross-examine witnesses who provide\\ntestimonial statements, unless the declarant is unavailable and the defendant\\nhad a prior opportunity for cross-examination. See Crawford v. Washington,\\n 12\\n\\f Case: 17-11490 Document: 00514999266 Page: 13 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-11490\\n541 U.S. 36, 68 (2004). We have held that a CNR qualifies as a testimonial\\nstatement. See Martinez-Rios, 595 F.3d at 586. Arellano-Banuelos therefore\\nhad the right “to be confronted with the analyst who made the certification.”\\nBullcoming v. New Mexico, 564 U.S. 647, 652 (2011); see also Martinez-Rios,\\n595 F.3d at 586 (finding constitutional error because the person who “prepared\\nthe CNR” did not testify at trial).\\n Priscilla Dobbins, an officer with U.S. Citizenship and Immigration\\nServices (USCIS), authored and signed the CNR in this case. She certified that\\nshe had the authority “to ascertain whether there are particular documents in”\\nan alien’s file. She further attested that USCIS systems were searched to\\nensure that no application for permission to reenter the United States after\\nremoval existed in Arellano-Banuelos’s file. Dobbins testified at trial and\\nArellano-Banuelos had the chance to cross-examine her, but he chose not to do\\nso. Arellano-Banuelos argues that the admission of the CNR nonetheless\\nviolated his rights under the Confrontation Clause because Dobbins did not\\npersonally check all the systems that led to the certification. Instead, a staff\\nmember ran the initial checks and created printouts.\\n Arellano-Banuelos does not offer legal authority for the proposition that\\nevery individual involved in the preparation of a document such as a CNR must\\ntestify at trial. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1\\n(2009) (explaining that “it is not the case, that anyone whose testimony may\\nbe relevant in establishing the chain of custody, authenticity of the sample, or\\naccuracy of the testing device, must appear in person as part of the\\nprosecution’s case”). Because Arellano-Banuelos had an opportunity to cross-\\nexamine the individual who prepared and signed the CNR, he cannot show a\\n“clear or obvious” Confrontation Clause error.\\n V.\\n The judgment of the district court is AFFIRMED.\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2458,"cells":{"id":{"kind":"number","value":4630326,"string":"4,630,326"},"name":{"kind":"string","value":"SECURITIES AND EXCHANGE COMMISSION, Plaintiff v. STANFORD INTERNATIONAL BANK, LIMITED, Defendant v. Joseph Becker; Terence Beven; Wanda Bevis; Thomas Eddie Bowden; Troy L. Lillie, Jr., Et Al, Movants-Appellants Doug McDaniel; Scott Notowich; Eddie Rollins; Cordell Haymon; Et Al, Objecting Parties-Appellants v. Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Interested Parties-Appellees Ralph S. Janvey, Appellee Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company, Plaintiffs-Appellees v. Ralph S. Janvey, in His Capacity as Court Appointed Receiver for Stanford International Bank Limited, Stanford Group Company, Stanford Capital Management L.L.C., Stanford Financial Group, and Stanford Financial Group Bldg, Defendant-Appellee v. Cordell Haymon, Intervenor-Appellant Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Plaintiffs-Appellees v. Cordell Haymon, Objecting Party-Appellant v. Ralph S. Janvey, Intervenor-Appellee Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Plaintiffs-Appellees v. Ralph S. Janvey, Intervenor Defendant-Appellee v. Cordell Haymon, Objecting Party-Appellant Cordell Haymon, Third Party Plaintiff-Appellant v. Certain Underwriters of Lloyd's of London, Claims Asserted by Claude F. Reynaud, Jr. Third Party Defendant-Appellee v. Ralph S. Janvey, Appellee"},"name_abbreviation":{"kind":"string","value":"SEC. & Exch. Comm'n v. Stanford Int'l Bank, Ltd."},"decision_date":{"kind":"string","value":"2019-06-17"},"docket_number":{"kind":"string","value":"17-10663"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jones, Clement, Southwick\", \"parties\": \"\", \"opinions\": [{\"author\": \"EDITH H. JONES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-10663 Document: 00514998485 Page: 1 Date Filed: 06/17/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-10663 FILED\\n June 17, 2019\\n Lyle W. Cayce\\nSECURITIES AND EXCHANGE COMMISSION Clerk\\n\\n Plaintiff\\n\\nv.\\n\\nSTANFORD INTERNATIONAL BANK, LIMITED\\n\\n Defendant\\n\\nv.\\n\\nJOSEPH BECKER; TERENCE BEVEN; WANDA BEVIS;\\nTHOMAS EDDIE BOWDEN; TROY L. LILLIE, JR., et al\\n\\n Movants - Appellants\\n\\nDOUG MCDANIEL; SCOTT NOTOWICH;\\nEDDIE ROLLINS; CORDELL HAYMON; et al,\\n\\n Objecting Parties - Appellants\\n\\nv.\\n\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\nARCH SPECIALTY INSURANCE COMPANY;\\nLEXINGTON INSURANCE COMPANY,\\n\\n Interested Parties - Appellees\\n\\nRALPH S. JANVEY,\\n\\n Appellee\\n***********************\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\n\\f Case: 17-10663 Document: 00514998485 Page: 2 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nARCH SPECIALTY INSURANCE COMPANY,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nRALPH S. JANVEY, In his Capacity as Court Appointed Receiver for\\nStanford International Bank Limited, Stanford Group Company, Stanford\\nCapital Managment L.L.C., Stanford Financial Group, and Stanford\\nFinancial Group Bldg,\\n\\n Defendant - Appellee\\n\\nv.\\n\\nCORDELL HAYMON,\\n\\n Intervenor - Appellant\\n*************************************\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\nARCH SPECIALTY INSURANCE COMPANY;\\nLEXINGTON INSURANCE COMPANY,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCORDELL HAYMON,\\n\\n Objecting Party - Appellant\\nv.\\n\\nRALPH S. JANVEY,\\n\\n Intervenor - Appellee\\n***************************************\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\nARCH SPECIALTY INSURANCE COMPANY;\\nLEXINGTON INSURANCE COMPANY,\\n\\n Plaintiffs - Appellees\\nv.\\n\\n 2\\n\\f Case: 17-10663 Document: 00514998485 Page: 3 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n\\n\\nRALPH S. JANVEY,\\n\\n Intervenor Defendant - Appellee\\nv.\\n\\nCORDELL HAYMON,\\n\\n Objecting Party - Appellant\\n*********************************************\\n\\nCORDELL HAYMON,\\n\\n Third Party Plaintiff - Appellant\\nv.\\n\\nCERTAIN UNDERWRITERS OF LLOYD’S OF LONDON, Claims asserted\\nby Claude F. Reynaud, Jr.\\n\\n Third Party Defendant - Appellee\\nv.\\n\\nRALPH S. JANVEY,\\n\\n Appellee\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JONES, CLEMENT, and SOUTHWICK, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n These appeals challenge the district court’s approval of a global\\nsettlement between Ralph Janvey, the Receiver for Stanford International\\nBank and related entities, and various insurance company Underwriters, who\\nissued policies providing coverage for fidelity breaches, professional indemnity,\\ndirectors and officers protection, and excess losses. The settlement yielded $65\\n\\n 3\\n\\f Case: 17-10663 Document: 00514998485 Page: 4 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nmillion for the Receiver’s claims against the insurance policy proceeds, but it\\nwipes out, through “bar orders,” claims by coinsureds to the policy proceeds\\nand their extracontractual claims against the Underwriters even if such claims\\nwould not reduce or affect the policies’ coverage limits. Among the parties\\nwhose claims were barred are Appellants comprising (a) two groups of former\\nStanford managers and employees; (b) Cordell Haymon, a Stanford entity\\ndirector who settled with the Receiver for $2 million; and (c) a group of\\nLouisiana retiree-investors.\\n A constellation of issues surrounding the global settlement is\\nencapsulated in the question whether the district court abused its discretion\\nin approving the settlement and bar orders. Based on the nature of in rem\\njurisdiction and the limitations on the court’s and Receiver’s equitable power,\\nwe conclude the district court lacked authority to approve the Receiver’s\\nsettlement to the extent it (a) nullified the coinsureds’ claims to the policy\\nproceeds without an alternative compensation scheme; (b) released claims the\\nEstate did not possess; and (c) barred suits that could not result in judgments\\nagainst proceeds of the Underwriters’ policies or other receivership assets.\\nAccordingly, we VACATE the district court’s order approving the settlement\\nand bar orders and REMAND for further proceedings consistent with this\\nopinion.\\n BACKGROUND\\n The massive Stanford Financial Ponzi scheme defrauded more than\\n18,000 investors who collectively lost over $5 billion. As part of a securities\\nfraud lawsuit brought by the SEC, the district court appointed the Receiver “to\\nimmediately take and have complete and exclusive control” of the receivership\\nestate and “any assets traceable” to it. The court granted the Receiver “the full\\npower of an equity receiver under common law,” including the right to assert\\nclaims against third parties and “persons or entities who received assets or\\n 4\\n\\f Case: 17-10663 Document: 00514998485 Page: 5 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nrecords traceable to the Receivership Estate.” SEC v. Stanford Int’l Bank, Ltd.,\\n776 F. Supp. 2d 323, 326 (N.D. Tex. 2011). The district court also held that the\\ncourt possessed exclusive jurisdiction over a group of insurance policies and\\ntheir proceeds, at issue in this case, and ruled that, other than a lawsuit\\ninvolving the Stanford criminal defendants, “[n]o persons or entities may bring\\nfurther claims related to the [Proceeds] in any forum other than” the district\\ncourt. Neither of these latter two orders was timely appealed.\\n The policies issued to the Stanford entities covered, in different\\narrangements, losses and defense costs for the entities and their officers,\\ndirectors and certain employees. At issue are the following policies: a\\nDirectors’ and Officers’ Liability and Company Indemnity Policy (“D&O”); a\\nFinancial Institutions Crime and Professional Indemnity Policy, including\\n(a) first-party fidelity coverage for employee theft (“Fidelity Bond”) and “[l]oss\\nresulting directly from dishonest, malicious or fraudulent acts committed by\\nan Employee,” and (b) third-party coverage for professional indemnity (“PI\\nPolicy”); and an Excess Blended “Wrap” Policy (“Excess Policy”). The policy\\nlimits are as follows:\\n\\n\\n Stanford Bank Entities Stanford Brokerage Entities\\nD&O Policy $5 million $5 million\\nPI Policy $5 million per Claim $5 million per Claim\\n $10 million aggregate $10 million aggregate\\nFidelity $5 million per Loss $5 million per Loss\\nBond $10 million aggregate $10 million aggregate\\nExcess $45 million each Claim or Loss/$90 million aggregate\\nPolicy\\n\\n\\n\\n\\n 5\\n\\f Case: 17-10663 Document: 00514998485 Page: 6 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n The maximum amount of remaining coverage is disputed. According to\\nthe district court, the Underwriters have paid some $30 million in claims under\\nthe policies for insureds’ defense costs. Underwriters contend that only $46\\nmillion remains available because the losses resulted from a single event – the\\nPonzi scheme. The Receiver argues that the conduct implicates the aggregate\\nloss limits up to $101 million of remaining coverage. The questions of coverage\\nultimately depend on the identity of the insureds under each policy and the\\nnature of the claims, and these issues are hotly contested. The Stanford\\ncorporate entities are insured under all of the policies, but Stanford directors,\\nofficers, and employees are coinsureds only under the D&O, PI, and Excess\\npolicies. 1 Each policy is subject to multiple definitions and exclusions. After\\nthe Receiver made numerous claims for coverage under the policies (the “Direct\\nClaims”) that were met with Underwriters’ denial based on policy exclusions,\\nseveral lawsuits ensued.\\n The Receiver also pursued the policy proceeds indirectly by filing\\nlawsuits (the “Indirect Claims”) against hundreds of former Stanford directors,\\nofficers, and employees, alleging fraudulent transfers and unjust enrichment\\nand/or breach of fiduciary duty. The Receiver obtained a $2 billion judgment\\nagainst one former Stanford International Bank director and a $57 million\\njudgment against a former Bank treasurer, both of whom were potentially\\ncovered under the policies. The Receiver continues to litigate similar claims\\nagainst the coinsured Appellants who were Stanford managers and employees.\\nSee, e.g., Stanford International Bank, Ltd., et al., v. James R. Alguire, et al.,\\nNo. 3:09-CV-0724-N (N.D. Tex., filed Dec. 18, 2019).\\n\\n\\n\\n\\n 1 There is no dispute that the Appellants here are coinsured under the noted policies,\\nbut not coinsured under the Fidelity bond. The chief dispute is about the effect of certain\\nlimitations and exclusions within the policies.\\n 6\\n\\f Case: 17-10663 Document: 00514998485 Page: 7 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n After eight years of sparring, the Receiver and Underwriters, together\\nwith the court-appointed Examiner on behalf of Stanford investors, mediated\\ntheir disputes for several months in 2015. Mediation initially resulted in a\\nSettlement Proposal under which the Underwriters agreed to pay the Receiver\\n$65 million, and in return the Receiver would “fully release any and all\\ninsureds under the relevant policies.” The purpose of the complete release was\\nto shield the Underwriters from any policy obligations to defend or indemnify\\nformer Stanford personnel, including the employee Appellants, in the\\nReceiver’s Indirect Claim lawsuits. The parties almost immediately disagreed\\nabout the content of the settlement, however, and the Underwriters filed an\\nExpedited Motion to Enforce the Settlement Agreement. The district court\\ndenied the motion and instructed the parties to continue negotiating. On\\nJune 27, 2016, the Receiver and Underwriters notified the court that they had\\nentered into a new settlement agreement, which the Examiner supported.\\n Under this new settlement, the Underwriters again agreed to pay $65\\nmillion into the receivership estate, but the settlement required orders barring\\nall actions against Underwriters relating to the policies or the Stanford\\nEntities. Paragraph 35 of the settlement provides Underwriters the\\nunqualified right to withdraw from the settlement if the court refuses to issue\\nthe bar orders. The bar orders were necessary because, unlike the terms of the\\nfirst proposed settlement, the Receiver is required to release only the Estate’s\\nclaims against 16 directors and officers (rather than all insureds), as well as\\nthe judgments already obtained against certain directors and officers. 2 All\\nother former Stanford employees, officers and directors, including Appellants,\\n\\n\\n\\n 2 Oddly, the settlement releases claims only against those directors and officers who\\nwere among the most culpable for the Ponzi scheme. And it releases Underwriters from any\\nobligation in connection with the aforementioned judgments for $2 billion and $57 million.\\nThis oddity should have been considered when assessing the fairness of the settlement.\\n 7\\n\\f Case: 17-10663 Document: 00514998485 Page: 8 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nremain subject to ongoing or potential litigation by the Receiver once the\\nlitigation stay against them is lifted. Some Appellants assert that their\\nindividual costs of defending the Receiver’s ongoing actions already exceed\\n$10,000. But the bar orders prevent them from suing the Underwriters for\\ntheir costs of defense and indemnity under the insurance policies, even though\\nthey are coinsured, or for extra-contractual or statutory claims.\\n The Receiver moved for approval of the settlement and entry of the bar\\norders. The district court directed notice to all interested parties, and received\\nobjections from several third parties, including Appellants. The court heard\\narguments of counsel regarding the settlement, but it refused to allow parties\\nto offer evidence or live testimony or engage in cross-examination. After the\\nhearing, parties were permitted to file additional declarations or affidavits.\\n The district court approved the settlement and bar orders, denied all\\nobjections, and approved the payment of $14 million of attorney fees to\\nReceiver’s counsel. Separate Final Judgments and Bar Orders were entered\\nin each action pending before it relating to the Stanford Entities and in\\nAppellant Haymon’s and Appellant Alvarado’s separate lawsuits against the\\nUnderwriters. The district court rejected all post-trial motions.\\n A more complete discussion of the court’s findings will follow, but in\\ngeneral, the court found that the settlement resulted from “vigorous, good\\nfaith, arm’s-length, mediated negotiations” and concluded that the settlement\\nwas “in all respects, fair, reasonable, and adequate, and in the best interests\\nof all Persons claiming an interest in, having authority over, or asserting a\\nclaim against Underwriters, Underwriters’ Insureds, the Stanford Entities,\\nthe Receiver, or the Receivership Estate.” The court further found that the\\nsettlement and bar orders were “fair, just, and equitable,” and it rejected the\\nAppellants’ due process claims based on their exclusion from settlement talks\\nand the lack of an evidentiary hearing. While the court recognized that the\\n 8\\n\\f Case: 17-10663 Document: 00514998485 Page: 9 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nbar orders discriminate between a few Stanford officers and the Appellants, it\\nreasoned that “on balance the unfairness alleged by the Objectors is either\\nmitigated by other circumstances or simply outweighed by the benefit of the\\nsettlement in terms of fairness, equity, reasonableness, and the best interests\\nof the receivership.”\\n The Appellants fall into three categories. The McDaniel Appellants and\\n“Alvarado” 3 Appellants are former Stanford managers or employees from\\noffices around the country (“Employees”) who seek contractual coverage under\\nthe insurance policies and press extra-contractual claims against the\\nUnderwriters, including for bad faith and statutory violations of the Texas\\nInsurance Code. Appellant Cordell Haymon (“Haymon”) was a member of\\nStanford Trust Company’s Board of Directors who settled the Receiver’s claims\\nagainst him for $2 million before the instant global settlement was reached,\\nand in return received the express right to pursue Underwriters for policy\\ncoverage and extra-contractual claims. Finally, the Louisiana Retirees/Becker\\nAppellants (“Retirees”) are former Stanford investors who sued Stanford\\nbrokers covered by the insurance policies and seek to recover from the\\nUnderwriters directly pursuant to the Louisiana Direct Action Statute, La.\\nRev. Stat. 22:1269.\\n Each group of Appellants raises different challenges to the court’s\\napproval of the settlement and bar orders. They appeal from the district court’s\\norder denying their objections to the proposed settlement, the Final Bar Order,\\n\\n\\n\\n\\n 3 While Alvarado was originally a party to this appeal, he withdrew his individual\\nappeal on April 19, 2018. The other employees to that action remain as appellants and will\\nbe denominated, for the sake of convenience, Alvarado Appellants.\\n\\n 9\\n\\f Case: 17-10663 Document: 00514998485 Page: 10 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nand the Order Approving Attorneys’ Fees 4 for the Receiver’s counsel. The\\nStanford Employees additionally appeal the Order denying their new trial\\nmotion, and Haymon appeals from the Order denying his motion for\\nreconsideration. After explaining the principles that govern the court’s\\nmanagement of the Receivership, we will analyze each set of Appellants’\\nobjections.\\n STANDARD OF REVIEW\\n A district court’s entry of a bar order, like other actions in supervising\\nan equity receivership, is reviewed for abuse of discretion. SEC v. Safety Fin.\\nServ., Inc., 674 F.2d 368, 373 (5th Cir. 1982); Newby v. Enron Corp., 542 F.3d\\n463, 468 (5th Cir. 2008). A district court’s determination of the fairness of a\\nsettlement in an equity receivership proceeding is reviewed for an abuse of\\ndiscretion. Sterling v. Stewart, 158 F.3d 1199, 1202 (11th Cir. 1998)\\n(“Determining the fairness of the settlement [in an equity receivership] is left\\nto the sound discretion of the trial court and we will not overturn the court’s\\ndecision absent a clear showing of abuse of that discretion.”). There is no abuse\\nof discretion where factual findings are not clearly erroneous and rulings are\\nwithout legal error. Marlin v. Moody Nat. Bank, N.A., 533 F.3d 374, 377 (5th\\nCir. 2008). A district court’s denial of a Rule 59 motion for a new trial or to\\nalter or amend a judgment also is reviewed for an abuse of discretion. St. Paul\\nMercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997). This\\nCourt reviews de novo a district court’s application of exceptions to the Anti–\\nInjunction Act as a question of law. Moore v. State Farm Fire & Cas. Co.,\\n556 F.3d 264, 269 (5th Cir. 2009).\\n\\n\\n\\n\\n 4The amount and propriety of the Receiver’s very high fee request is not substantively\\nbriefed by any party and is therefore waived, except to the extent that on remand the fee\\nought to be reconsidered in light of this opinion.\\n 10\\n\\f Case: 17-10663 Document: 00514998485 Page: 11 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n DISCUSSION\\n I. General Receivership Principles\\n A district court has broad authority to place assets into receivership “to\\npreserve and protect the property pending its final disposition.” Gordon v.\\nWashington, 295 U.S. 30, 37, 55 S. Ct. 584 (1935); see also Gilchrist v. Gen.\\nElec. Capital Corp., 262 F.3d 295, 302 (4th Cir. 2001) (“the district court has\\nwithin its equity power the authority to appoint receivers and to administer\\nreceiverships”) (citing Fed. R. Civ. P. 66). The primary purpose of the equitable\\nreceivership is the marshaling of the estate’s assets for the benefit of aggrieved\\ninvestors and other creditors of the receivership entities. See SEC v. Hardy,\\n803 F.2d 1034, 1038 (9th Cir. 1986). Receivers appointed by a federal court are\\ndirected to “manage and operate” the receivership estate “according to the\\nrequirements of the valid laws of the State in which such property is situated,\\nin the same manner that the owner or possessor thereof would be bound to do\\nif in possession thereof.” 28 U.S.C. § 959(b).\\n In general, the Receiver has wide powers to acquire, organize and\\ndistribute the property of the receivership. A properly appointed receiver is\\n“vested with complete jurisdiction and control of all [receivership] property\\nwith the right to take possession thereof.” 28 U.S.C. § 754. The Receiver is\\nobliged to allocate receivership assets among the competing claimants\\naccording to their respective rights and, in this case, under the laws of Texas,\\nwhere the Stanford Financial Group was headquartered. The district court\\nruled, in a 2009 order that was not appealed, that the insurance policies and\\nproceeds are property of the estate subject to the court’s exclusive in rem\\njurisdiction.\\n Once assets have been placed in receivership, “[i]t is a recognized\\nprinciple of law that the district court has broad powers and wide discretion to\\ndetermine the appropriate relief in an equity receivership.” Safety Fin.,\\n 11\\n\\f Case: 17-10663 Document: 00514998485 Page: 12 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n674 F.2d at 372–73 (citing SEC v. Lincoln Thrift Assoc., 577 F.2d 600, 606 (9th\\nCir. 1978)). This discretion derives not only from the statutory grant of power,\\nbut also the court’s equitable power to fashion appropriate remedies as\\n“ancillary relief” measures. See SEC v. Wencke, 622 F.2d 1363, 1369 (9th Cir.\\n1980). Courts have accordingly exercised their discretion to issue bar orders\\nto prevent parties from initiating or continuing lawsuits that would dissipate\\nreceivership assets or otherwise interfere with the collection and distribution\\nof the assets. See SEC v. Stanford Int’l Bank Ltd., 424 F. App’x 338, 340 (5th\\nCir. 2011) (“It is axiomatic that a district court has broad authority to issue\\nblanket stays of litigation to preserve the property placed in receivership\\npursuant to SEC actions.”). Receivership courts, like bankruptcy courts, may\\nalso exercise discretion to approve settlements of disputed claims to\\nreceivership assets, provided that the settlements are “fair and equitable and\\nin the best interests of the estate.” Ritchie Capital Mgmt., L.L.C. v. Kelley,\\n785 F.3d 273, 278 (8th Cir. 2015) (citing Tri–State Fin., LLC v. Lovald,\\n525 F.3d 649, 654 (8th Cir. 2008)).\\n Neither a receiver’s nor a receivership court’s power is unlimited,\\nhowever. See Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S. Ct. 1858, 1878\\n(1971) (“The remedial powers of an equity court must be adequate to the task,\\nbut they are not unlimited.”). Courts often look to the related context of\\nbankruptcy when deciding cases involving receivership estates. The district\\ncourt here acknowledged that the purpose of bankruptcy receiverships and\\nequity receiverships is “essentially the same—to marshal assets, preserve\\nvalue, equally distribute to creditors, and, either reorganize, if possible, or\\norderly liquidate.” Janvey v. Alquire, No. 3:09-cv-0724, 2014 WL 12654910, at\\n*17 (N.D. Tex. July 30, 2014); see also SEC v. Wealth Mgmt. LLC, 628 F.3d\\n323, 334 (7th Cir. 2010) (“The goal in both securities-fraud receiverships and\\nliquidation bankruptcy is identical—the fair distribution of the liquidated\\n 12\\n\\f Case: 17-10663 Document: 00514998485 Page: 13 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nassets”). That their purpose is the same “makes sense” and reflects their\\nshared legal heritage, since “federal equity receiverships were the predecessor\\nto Chapter 7 liquidations and Chapter 11 reorganizations.” Alquire, 2014 WL\\n12654910, at *17 (citing Duparquet Huot & Moneuse Co. v. Evans, 297 U.S.\\n216, 221, 56 S. Ct. 412, 414 (1936)). The district court also recognized that “[i]n\\nthis particular case, the purpose and objectives of the receivership, as\\ndelineated in the Receivership Order, closely reflect the general purpose\\nshared by the Bankruptcy Code and federal equity receiverships,” and it\\nconcluded that “[u]ltimately, this particular receivership is the essential\\nequivalent of a Chapter 7 bankruptcy.” Id. at *18.\\n Unfortunately, two interrelated limitations on the Stanford receivership\\nwere downplayed by the district court in its approval of the settlement and bar\\norders. Both derive from the broader principle that the receiver collects and\\ndistributes only assets of the entity in receivership. The first applies to the\\nReceiver’s standing: “[l]ike a trustee in bankruptcy or for that matter the\\nplaintiff in a derivative suit, an equity receiver may sue only to redress injuries\\nto the entity in receivership, corresponding to the debtor in bankruptcy and the\\ncorporation of which the plaintiffs are shareholders in the derivative suit.”\\nScholes v. Lehmann, 56 F.3d 750, 753 (7th Cir. 1995) (emphasis added) (citing,\\ninter alia, Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S. Ct.\\n1678 (1972)). The Scholes case involved an SEC receivership, but Caplin, on\\nwhich it relied, was a Supreme Court decision in a Chapter X reorganization\\ncase. This court endorsed the Scholes limitation as applied to this receivership\\nin Janvey v. Democratic Senatorial Campaign Comm., Inc. (“DSCC”), 712 F.3d\\n185, 190–93 (5th Cir. 2013). And following Caplin, a sister circuit held, “a\\ntrustee, who lacks standing to assert the claims of creditors, equally lacks\\nstanding to settle them.” DSQ Prop. Co., Ltd. v. DeLorean, 891 F.2d 128, 131\\n(6th Cir. 1989); see also Wuliger v. Mfr’s. Life Ins. Co., 567 F.3d 787, 794 (6th\\n 13\\n\\f Case: 17-10663 Document: 00514998485 Page: 14 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nCir. 2009) (“Because the receivership entities all would have lacked standing,\\nand because of the rule that receivers’ rights are limited to those of the\\nreceivership entities, the Receiver also lacked standing [to sue for\\nmisrepresentations by brokers to defrauded investors].”).\\n The second limitation, arising from the district court’s in rem\\njurisdiction, is that the court may not exercise unbridled authority over assets\\nbelonging to third parties to which the receivership estate has no claim. Put\\nanother way, in the course of administering this receivership, this district court\\npreviously rejected a broad reading of 28 U.S.C. § 754 that suggested the\\ncourt’s in rem jurisdiction over the property would necessarily reach every\\nclaim relating to that property. See Rishmague v. Winter, No. 3:11-cv-2024-N,\\n2014 WL 11633690, at *2 (N.D. Tex. Sept. 9, 2014).\\n Thus, this court and others have held that a bankruptcy court may not\\nauthorize a debtor to enter into a settlement with liability insurers that enjoins\\nindependent third-party claims against the insurers. See, e.g., Matter of Zale\\nCorp., 62 F.3d 746 (5th Cir. 1995) (refusing to countenance a bankruptcy\\ncourt’s authority to enforce a settlement prohibiting third-party bad faith\\ninsurance claims because the claims were not property of the bankruptcy\\nestate). Similarly, “if [the coinsureds’] portion of the [insurance] Proceeds is\\ntruly not property of the Estate, then the bankruptcy court has no authority to\\nenjoin suits against the [coinsureds].” In re Vitek, 51 F.3d 530, 536 (5th Cir.\\n1995); see also In re SportStuff, Inc., 430 B.R. 170, 175 (B.A.P. 8th Cir. 2010)\\n(bankruptcy court lacked jurisdiction or authority to impair or extinguish\\nindependent contractual rights of vendors that were additional insureds under\\nthe debtor’s policies). As these cases illustrate, bankruptcy courts lack\\n“jurisdiction” to enjoin such claims.\\n The prohibition on enjoining unrelated, third-party claims without the\\nthird parties’ consent does not depend on the Bankruptcy Code, but is a maxim\\n 14\\n\\f Case: 17-10663 Document: 00514998485 Page: 15 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nof law not abrogated by the district court’s equitable power to fashion ancillary\\nrelief measures. Contrary to the Receiver’s assertion, the fact that the\\nbankruptcy statute, 28 U.S.C. § 1334(b), limits jurisdiction to proceedings\\n“arising in or related to” bankruptcy cases does not diminish the application of\\nZale or Vitek to equity receiverships. As noted, bankruptcy and equity\\nreceiverships share common legal roots. 5 See In re Davis, 730 F.2d 176, 183–\\n84 (5th Cir. 1984) (the Bankruptcy Code arms bankruptcy courts with broad\\npowers analogous to a court in equity). Moreover, to justify its decision denying\\nbankruptcy court jurisdiction over third-party claims, the court in Zale quoted\\nthe Supreme Court in a civil rights class action case: “[o]f course, parties who\\nchoose to resolve litigation through settlement may not dispose of the claims\\nof a third party, and a fortiori may not impose duties or obligations on a third\\nparty, without that party’s agreement. A court’s approval of a consent decree\\nbetween some of the parties therefore cannot dispose of the valid claims of\\nnonconsenting intervenors . . . .” Zale, 62 F.3d at 757 n.26 (citing Local No. 93\\nv. City of Cleveland, 478 U.S. 501, 529, 106 S. Ct. 3063, 3079, (1986)). 6 All of\\n\\n\\n\\n 5 Modern bankruptcy reorganization law originated with Section 77B of the\\nBankruptcy Act of 1934, the purpose of which was to codify best practices in what had\\nformerly been known as equity receiverships. See Duparquet Huot & Moneuse Co. v. Evans,\\n297 U.S. 216, 222–24, 56 S. Ct. 412, 415–17 (1936). Section 77B(a), in turn, stated that the\\nbankruptcy court’s powers are those “which a Federal court would have had it appointed a\\nreceiver in equity of the property of the debtor . . . .” Id. at 221, 56 S. Ct. at 415.\\n\\n 6 Local No. 93 is merely one example of the Supreme Court’s rejection of the use of\\nconsent decrees to extinguish the claims of non-consenting third-parties, for “[a] voluntary\\nsettlement in the form of a consent decree between one [party] and [another party] cannot\\npossibly ‘settle,’ voluntarily or otherwise, the conflicting claims of another group of [parties]\\nwho do not join in the agreement. This is true even if the second group of [parties] is a party\\nto the litigation.” Martin v. Wilks, 490 U.S. 755, 755–68, 109 S. Ct. 2180, 2181–88 (1989).\\nIndeed, “[a]ll agree” that “[i]t is a principle of general application in Anglo-American\\njurisprudence that one is not bound by a judgment in personam in a litigation in which he is\\nnot designated as a party or to which he has not been made a party by service of process.” Id.\\n(citing Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 117 (1940)).\\n\\n 15\\n\\f Case: 17-10663 Document: 00514998485 Page: 16 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nthis makes clear that it is not the subject matter or statutory limitations\\ndriving this limitation, and federal district courts have no greater authority in\\nequity receiverships to ignore these bedrock propositions, because a “court in\\nequity may not do that which the law forbids.” United States v. Coastal Ref. &\\nMktg., Inc., 911 F.2d 1036, 1043 (5th Cir. 1990).\\n Rather than reckon with the limits on the Receiver’s standing and the\\ncourt’s equitable power, the district court here cited an unpublished Fifth\\nCircuit case, SEC v. Kaleta, No. 4:09-cv-3674, 2012 WL 401069, at *4 (S.D. Tex.\\nFeb. 7, 2012), aff’d., 530 F. App’x. 360 (5th Cir. 2013), to support both the\\nsettlement and bar orders. Importantly, Kaleta is an unpublished, non-\\nprecedential decision of this court. Not only that, but reading it as the district\\ncourt and Appellees here advocate would mean investing the Receiver with\\nunbridled discretion to terminate the third-party claims against a settling\\nparty that are unconnected to the res establishing jurisdiction. That is\\nunprecedented. But Kaleta is in any event distinguishable and not\\ninconsistent with the above-stated principles. In Kaleta, the bar order\\nprevented defrauded investors from suing parties closely affiliated with the\\nentity in receivership after the parties had agreed to make good on their\\nguarantees to the receiver. Moreover, the settling parties would have been\\ncodefendants with receivership entities, leading to the possibility of their\\nasserting indemnity or contribution from the estate. The court was forestalling\\na race to judgment that would have diminished the recovery of all creditors\\nagainst receivership assets. That bar order protected the assets of the\\nreceivership estate, whereas the bar orders before us extend beyond\\nreceivership assets.\\n The Receiver also contends that the district court may permanently\\nenjoin the claims of non-consenting third parties based on general statements\\nabout ancillary powers found in SEC cases such as Wencke and Safety\\n 16\\n\\f Case: 17-10663 Document: 00514998485 Page: 17 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nFinancial Services. We disagree. These cases stand only for the proposition\\nthat, in some circumstances, federal courts may use injunctive measures, such\\nas stays, “where necessary to protect the federal receivership.” See Wencke,\\n622 F.2d at 1370; Safety Fin. Serv., 674 F.2d at 372 n.5 (distinguishing Wencke,\\nwhich “involved the much broader question of a federal court’s power to enjoin\\nnonparty state actions against receivership assets.”) (emphasis added). In fact,\\nthe court in Wencke recognized that its holding was limited to the propriety of\\nstaying third-party “proceedings against a court-imposed receivership.”\\nWencke, 622 F.2d at 1371 (emphasis added). Correctly read, these cases\\nexplain that in rem jurisdiction over the receivership estate imbues the district\\ncourt with broad discretion to shape equitable remedies necessary to protect\\nthe estate. 7 They do not support that a district court’s in rem jurisdiction over\\nthe estate may serve as a basis to permanently bar and extinguish\\nindependent, non-derivative third-party claims that do not affect the res of the\\nreceivership estate.\\n The Appellees emphasize the recent decision SEC v. DeYoung, 850 F.3d\\n1172 (10th Cir. 2017), as supporting their argument that an equity court’s\\npermanent bar order against third parties is appropriate when tied to a\\nsettlement that secures receivership assets. Like many of their arguments,\\nhowever, this assertion proves too much. DeYoung is a narrow and deliberately\\nfact-specific opinion. See DeYoung, 850 F.3d at 1182–83. The court approved\\na bar order preventing three defrauded IRA Account holders (out of over 5,500\\nvictims) from pursuing claims against the depository bank in which the\\naccounts had been illegally commingled. Notably, however, the court\\ndemonstrated that (1) the claims of the barred investors precisely mirrored\\n\\n\\n 7 See also SEC v. Stanford Int’l Bank, Ltd., 424 F. App’x. 338, 340 (5th Cir. 2011) (“It\\nis axiomatic that a district court has broad authority to issue blanket stays of litigation to\\npreserve the property placed in receivership pursuant to SEC actions.”) (emphasis added).\\n 17\\n\\f Case: 17-10663 Document: 00514998485 Page: 18 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nclaims that had been asserted and settled by the receiver; (2) averted a\\nduplicative lawsuit whereby the bank could have asserted its contract right to\\nindemnity from the receivership assets; and (3) provided the account holders\\nwith a claim against the receivership estate. The court simply channeled\\nredundant claims into the receivership while preventing diminution of\\nreceivership assets.\\n Returning to the broad issue in this case, whether the district court\\nabused its discretion in approving the settlement and bar orders, there are two\\nsubparts to the question. The first is whether the district court’s equitable\\npower to fashion ancillary relief could be used to bar claims by insureds to\\nproceeds of the Underwriters’ policies, which are property within the\\nreceivership estate. The second is whether the court’s equitable power may be\\nused to bar third-party claims, like tort or statutory claims, against the\\nUnderwriters but unconnected to the property of the Receivership. The\\nanswers to these questions vary according to the Appellants’ claims. Texas\\nlaw, unless otherwise noted, applies by virtue of 28 U.S.C. § 959(b).\\nII. Party Contentions\\n a. Appellants Alvarado and McDaniel\\n The McDaniel and Alvarado Appellants are all former Stanford\\nmanagers or employees who are being sued by the Receiver for clawbacks of\\ntheir compensation via the Receiver’s Indirect Claims on the Underwriters’\\npolicies. Appellants seek coverage under the insurance policies, which\\nUnderwriters have denied, to defend against these lawsuits and indemnify\\ntheir losses. Appellants object to the settlement and bar orders on numerous\\ngrounds. From a practical standpoint, the settlement will exhaust the\\nUnderwriters’ policy proceeds, leaving these Appellants wholly uninsured\\nagainst the Receiver’s lawsuits. The bar orders, moreover, prevent them from\\npursuing against the Underwriters not only breach of contract claims for\\n 18\\n\\f Case: 17-10663 Document: 00514998485 Page: 19 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nviolating the duties to defend and indemnify, but also statutory and tort claims\\nthat, if successful, would not be paid from policy proceeds and would not reduce\\nReceivership assets.\\n The district court’s rejection of Appellants’ objections rested generally on\\nits conclusion that the settlement and bar orders are fair, equitable, reasonable\\nand in the best interests of the receivership estate. As has been noted, the\\ncourt cited only the Kaleta case, affirmed by a non-precedential decision of this\\ncourt, in support of its conclusions. The court’s reasoning invoked the\\nperceived necessity of a settlement, together with the bar orders, to resolve\\nfairly and efficiently the competing claims of the Receiver and Underwriters\\nabout policy coverage and assure the maximum recovery for Stanford’s\\ndefrauded investors. Without the bar orders, the court stated, Underwriters\\nwould not settle. The court pointedly refused to decide whether policy\\nexclusions apply to the Appellants’ coverage claims. Even if such exclusions\\nbarred coverage, the court added, then the Receiver might also be barred by\\nthe same exclusions and all potential benefit of the settlement would be lost.\\nIn sum, the Appellants would lose out no matter what: their claims could be\\nbarred by exclusions, held uninsurable, or the Receiver, having the right to\\nsettle, would exhaust the proceeds first. 8 The balance of benefits to the\\nreceivership estate against Appellants’ admitted losses weighed in favor of the\\ncourt’s approving the settlement and bar orders.\\n\\n\\n\\n 8 Implicit in the district court’s reference to the Receiver’s right to settle and exhaust\\nall the policy proceeds is apparently its reliance on Texas law, which allows an insurer to\\nsettle with fewer than all of its co-insureds when the policy proceeds are insufficient to satisfy\\nall of the claims. See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex.\\n1929); Pride Transp. v. Cont’l Cas. Co., 511 F. App’x 347, 351 (5th Cir. 2013); Travelers\\nIndem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 765–68 (5th Cir. 1999); see also Tex.\\nFarmers Ins. Co. v. Soriano, 881 S.W.2d 312, 315 (Tex. 1994). The court, however, never\\nreferenced these cases.\\n\\n 19\\n\\f Case: 17-10663 Document: 00514998485 Page: 20 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n In the course of explaining its decision, however, the court made some\\nerrors. First, its broad statement that the settlement would fail without the\\nbar orders did not account for the fact that the parties had mediated a prior\\nsettlement that required no bar orders against these Appellants because the\\nReceiver had agreed to release all of its claims against them. “Global peace”\\nthere was achieved not by bar orders, but by the Receiver’s agreeing to drop\\nthe Indirect Claim suits. The final settlement required the broad bar orders\\nonly because the Receiver, for whatever reason, insisted that it must continue\\nto pursue hundreds of clawback actions. 9 The court’s broad statement also\\nneglected to note that, despite the Receiver’s overall insistence to the contrary,\\nthe Receiver nonetheless released its claims against sixteen former Stanford\\nofficers and employees in the final settlement.\\n Second, the court, perhaps inadvertently, did not address the fact that\\nAppellants were foreclosed from sharing in the assets recovered by the\\nReceiver by filing claims against the estate.\\n Third, the court failed to distinguish between the Appellants’ two\\nseparate types of claims – contractual claims for defense and indemnity\\npayable (if successful) from policy proceeds in competition with investors’\\nclaims to the Receivership assets; and independent, non-derivative, third-\\nparty claims for tort and statutory violations, which would be satisfied (if\\nsuccessful) out of Underwriters’ assets. In this connection, the court also\\nundervalued the Appellants’ claims for indemnity by disregarding Pendergest-\\nHolt. In that case, this court held that the D&O policies should provide up-\\nfront reimbursement of defense costs in Stanford insureds’ criminal cases\\n\\n\\n\\n 9 Indeed, when the Underwriters moved the district court to enforce the terms of the\\nmediated settlement, their motion queried the benefits to be reaped, other than in the\\nReceiver’s legal fees, from these time-consuming suits against relatively poor former\\nemployees targeted by the Receiver.\\n 20\\n\\f Case: 17-10663 Document: 00514998485 Page: 21 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\npending a separate judicial proceeding to resolve the coverage question.\\nPendergest-Holt v. Certain Und. at Lloyd’s of London, 600 F.3d 562, 572–74\\n(5th Cir. 2010). Although carefully hedged, this decision offered Appellants\\nthe prospect of possible, temporary relief for their mounting defense costs and\\nwas not “wholly inapplicable” to the decision concerning the settlement and\\nbar orders. But in any event, the court did not analyze the ramifications of\\nAppellants’ distinct claims against Receivership assets and claims wholly\\nindependent of receivership assets.\\n i. Contractual Claims for Defense and Indemnity\\n Reviewing first the settlement and bar of Appellants’ contractual claims\\nagainst the policy proceeds that are property of the receivership estate, we find\\nthat the court abused its discretion by extinguishing Appellants’ claims to the\\npolicy proceeds, while making no provision for them to access the proceeds\\nthrough the Receiver’s claims process. This undermines the fairness of the\\nsettlement.\\n As the district court observed, some settlement with the Underwriters\\nwas prudent because of the sheer magnitude of claims far beyond the policies’\\ncoverage, and because the scope of coverage, dependent on multiple, insured-\\nspecific factual and legal questions, is unclear. What is clear in Texas law, as\\nconceded by Appellants, is that an insurer may settle with fewer than all of its\\nco-insureds when the policy proceeds are insufficient to satisfy all of the claims.\\nSee G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex.\\n1929); Pride Transp. v. Continental Cas. Co., 511 F. App’x 347, 351 (5th Circuit\\n2013); Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 765–68\\n(5th Cir. 1999); see also Farmers Insurance Co. v. Soriano, 881 S.W.2d 312, 315\\n\\n\\n\\n\\n 21\\n\\f Case: 17-10663 Document: 00514998485 Page: 22 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n(Tex. 1994). 10 Although the district court did not cite these cases, its ruling\\nsquares with them and supports its cost/benefit calculation for the\\nReceiver/Underwriters’ settlement to the detriment of Appellants’ contractual\\nclaims.\\n But not only did the settlement expressly foreclose the Appellants from\\nsharing in the insurance policy proceeds of which they are coinsureds, the\\nAppellants are not even allowed to file claims against the Receivership estate.\\nUnlike the Stanford investors and the Receiver’s attorneys, who can pursue\\nrestitution through the Receiver’s claims process, Appellants have no access to\\nthe claims process. The Settlement Agreement specifically restricts payment\\nof the Proceeds to the Receivers’ attorneys and the Stanford investors and\\nspecifically excludes Stanford employees and management, including\\nAppellants. For these Appellants, should the Receiver continue to pursue\\nthem, their claims against the Underwriters offer the only avenue of recovery.\\nThis alone serves to distinguish this case from Kaleta, which approved the\\nsettlement because, inter alia, the settlement agreement “expressly permits”\\nthose affected by the bar order “to pursue their claims by ‘participat[ing] in the\\nclaims process for the Receiver's ultimate plan of distribution for the\\nReceivership Estate.’” See Kaleta, 530 F. App’x at 362–63 (alteration in\\noriginal). Barring Appellants’ claims to coverage under their insurance\\npolicies by claiming the proceeds of these policies as property of the\\nReceivership, and then barring Appellants’ from accessing even a portion of\\nthese proceeds through the Receivership claim process, undermines the\\nfairness of the settlement.\\n\\n\\n\\n 10 Soriano may not squarely apply to the extent that the settlement does not, on its\\nface, exhaust the policy limits. But this uncertainty in the law meant that settlement\\nbetween the Receiver and the Underwriters was fair game.\\n\\n 22\\n\\f Case: 17-10663 Document: 00514998485 Page: 23 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n The district court and Receiver lacked authority to dispossess claimants\\nof their legal rights to share in receivership assets “for the sake of the greater\\ngood.” The court’s duty, as previously described, is to assure that all claimants\\nagainst the Receivership have a reasonable opportunity to share in the estate’s\\nassets. Given the numerous exclusions to policy coverage, 11 the Appellants’\\nentitlement to proceeds may appear weak, but the court disclaimed deciding\\ncoverage issues, and the Appellants have identified several reasons, in addition\\nto Pendergest-Holt, why their contractual claims might prevail on final\\nadjudication. 12\\n Rather than extinguish the Appellants’ contractual claims, the court\\ncould have authorized them to be filed against the Receivership in tandem with\\nthe Stanford investors’ claims. Such “channeling orders” are often employed\\nto afford alternative satisfaction to competing claimants to receivership assets\\nwhile limiting their rights of legal recourse against the assets. See, e.g.,\\nDeYoung, 850 F.3d at 1182; see also Kaleta, 530 F. App’x at 360 (approving\\nclaims filing in receivership for barred litigants). In any event, the court may\\nhave intended to channel the Appellants’ claims here but simply overlooked\\ntheir omission from the extant procedures. 13\\n\\n\\n\\n The myriad of contested policy exclusions include the insured versus insured, money\\n 11\\n\\nlaundering, fraud, intentional corporate or business policy, and prior knowledge exclusions.\\n\\n 12 Appellants explain that a significant number of their group have no personal\\nliability, and, inferentially, should not be subject to policy exclusions, because they did not\\nsell Stanford CDs to investors. Further, because the Receiver’s claims against the Appellants\\nare not derivative, any recovery from the proceeds would not at all reduce or offset the\\nAppellants’ liability for fraudulent transfers. Finally, Appellants assert viable defenses to\\nthe clawback actions based, in part, on Texas law in this Receivership. See Janvey v. Golf\\nChannel, Inc., 487 S.W.3d 581, 582 (Tex. 2016) (recognizing defense to fraudulent transfer of\\nreasonably equivalent value received).\\n\\n 13The Receiver and Underwriters contend that in lieu of other modes of compensation\\nthrough the receivership, these Appellants have received “benefits,” however small, from the\\nsettlement because the insurance proceeds that have gone into the receivership estate offset\\n 23\\n\\f Case: 17-10663 Document: 00514998485 Page: 24 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n ii. Extracontractual Claims for Tort and Statutory Violations\\n By ignoring the distinction between Appellants’ contractual and\\nextracontractual claims against Underwriters, the district court erred legally\\nand abused its discretion in approving the bar orders. 14 These claims,\\nincluding common law bad faith breach of duty and claims under the Texas\\nInsurance Code, lie directly against the Underwriters and do not involve\\nproceeds from the insurance policies or other receivership assets. 15 These\\ndamage claims against the Underwriters exist independently; they do not arise\\nfrom derivative liability nor do they seek contribution or indemnity from the\\nestate. 16 As the preceding discussion explains in detail, receivership courts\\nhave no authority to dismiss claims that are unrelated to the receivership\\nestate. That the district court was “looking only to the fairness of the\\nsettlement as between the debtor and the settling claimant [and ignoring third-\\nparty rights] contravenes a basic notion of fairness.” Zale, 62 F.3d at 754\\n\\n\\n\\ntheir potential liability in the Receiver’s and other suits. The district court made no such\\nfinding, and we see no basis in the record for it.\\n\\n 14 The Receiver and Underwriters would pretermit any such distinction by contending\\nthat unless the Appellants had valid contractual claims for insurance from the Underwriters’\\npolicies, they could not bring extracontractual claims. This may well be accurate. The\\ndistrict court, however, refused to rule on the viability of Appellants’ contractual claims, and\\nwe need not undertake that task here. The basis of settlement for all concerned is to avoid\\ntedious litigation of insurance coverage claims.\\n\\n 15This principle has been described above in the related context of bankruptcy. See\\nMatter of Zale Corp., 62 F.3d 746, 756–57 (5th Cir. 1995); Matter of Vitek, Inc., 51 F.3d 530,\\n538 (5th Cir. 1995); In re Sportstuff, Inc., 430 B.R. 170, 178–79 (B.A.P. 8th Cir. 2010); see also\\nMatter of Buccaneer Res., LLC, 912 F.3d 291, 293–97 (5th Cir. 2019) (explicating the\\ndifference between derivative and non-derivative injuries and holding that a tortious\\ninterference claim by a former company president against the outside lenders is non-\\nderivative and separate from the bankruptcy estate).\\n\\n 16 See SEC v. DeYoung, 850 F.3d 1172; In re Heritage Bond Litig., 546 F.3d 667, 680\\n(9th Cir. 2008) (discussing settlement of a securities class action and distinguishing between\\nclaims for codefendant contribution and independent claims against settling defendants;\\nformer could be dismissed by bar order, but latter claims could not be).\\n 24\\n\\f Case: 17-10663 Document: 00514998485 Page: 25 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n(alteration in original) (citing United States v. AWECO, Inc., 725 F.2d 293, 298\\n(5th Cir.)).\\n As discussed above, the Receiver lacked standing to settle independent,\\nnon-derivative, non-contractual claims of these Appellants against the\\nUnderwriters. See DSCC, 712 F.3d at 190, 193 (receiver “has standing to\\nassert only the claims of the entities in receivership, not the claims of the\\nentities’ investor-creditors [coinsureds] . . .”). Of course, the Receiver and\\nUnderwriters were, as Appellants’ counsel colorfully described, all too happy\\nto compromise at the expense of Appellants’ rights. The court purported to\\njustify this result by claiming that “the bar orders are not settling claims, they\\nare enjoining them.” No matter the euphemism, a permanent bar order is a\\ndeath knell intended to extinguish the claims, which are a property interest,\\nhowever valued, of the Appellants.\\n Moreover, in approving the settlement and bar orders against these\\nAppellants, the district court overlooked problems inherent in the settling\\nparties’ positions. The Underwriters’ position was in conflict with the\\nAppellants: by means of the bar orders, the Underwriters limited their\\nexposure to further costly and time-consuming litigation over Appellants’ non-\\nderivative extracontractual claims against them. The Receiver was enabled by\\nthe settlement and bar orders to place Appellants in a vise: preserving his\\nability to sue Appellants for clawbacks even as the agreement stripped\\nAppellants’ access to any recompense from the Underwriters. 17 These\\n\\n\\n\\n\\n 17 The mediated settlement, in contrast, averted these conflicts of interest with the\\nReceiver’s release of claims against Appellants offsetting the Underwriters’ potential\\nextracontractual liability.\\n\\n 25\\n\\f Case: 17-10663 Document: 00514998485 Page: 26 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nproblems cast grave doubt on the fairness and equity of the settlement and bar\\norders reached without Appellants’ participation. 18\\n In sum, although we sympathize with the impetus to settle difficult and\\natomized issues of insurance coverage rather than dissipate receivership\\nassets in litigation, the settlement and bar orders violated fundamental limits\\non the authority of the court and Receiver. The court and Receiver could not\\nabrogate contractual claims of these Appellants to proceeds of Underwriters’\\npolicies without affording them an alternative compensation scheme similar,\\nif not identical, to the claims process for Stanford investors. The court could\\nnot authorize the Receiver and Underwriters to compromise their differences\\nwhile extinguishing the Appellants’ extracontractual claims against\\nUnderwriters. Equity must follow the law, which here constrains the court’s\\nand Receiver’s authority to protecting the assets of the receivership and claims\\ndirectly affecting those assets. 19\\n b. Appellant Cordell Haymon\\n Like the Alvarado and McDaniel Appellants, Appellant Cordell Haymon,\\na member of Stanford Trust Company’s board of Directors, was targeted by the\\n\\n\\n\\n When compared with DeYoung, 850 F.3d at 1182–83, the unsustainability of the\\n 18\\n\\nsettlement and bar orders here is manifest. Unlike that case, the extracontractual claims of\\nthese Appellants do not parallel those of the Receiver, Underwriters possess no\\ncontribution/indemnity claim against the receivership estate, and Appellants have been\\nprovided no channel to assert claims in the receivership.\\n\\n 19We reject Appellants’ due process claims against the settlement and bar orders.\\nThey contend that because they “had an interest in” the outcome of the settlement, and the\\nBar Order “fully and finally adjudicates Appellants’ independent state law contract and tort\\nclaims,” due process required at least the ability to introduce evidence at the hearing.\\nMcDaniel presses other constitutional claims. But Appellants were provided notice of the\\nsettlement hearing, were able to fully brief their position and provide affidavits, and they\\nhave offered nothing more on appeal. Although excluded from the settlement negotiations,\\nthey have shown no legal requirement that they be allowed to participate in a settlement\\nresolving claims for reimbursement against the limited policy proceeds. The applicable Texas\\nlaw allows insurers to settle with fewer than all of the insureds in such circumstances.\\nAppellants’ due process arguments fail, and McDaniel’s other claims are meritless.\\n 26\\n\\f Case: 17-10663 Document: 00514998485 Page: 27 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nReceiver and sought coverage of his defense costs under the insurance policies.\\nAfter the Underwriters denied his claim for coverage, he settled the Receiver’s\\nfiduciary duty breach suit for $2 million. Haymon asserts that he relied on the\\nlanguage of his settlement agreement, which specifically authorized the\\ncontinuation of his suit against the Underwriters. Only a few months later,\\nhowever, the final proposed settlement undid his expectations of recovery from\\nthe Underwriters. Haymon requested to intervene in the initial coverage\\ndispute between Underwriters and the Receiver, and he filed objections to the\\nproposed settlement. He argues now that the district court erred in barring all\\nof his contractual and extracontractual tort and statutory claims against the\\nUnderwriters.\\n To the extent that Haymon’s claims mirror those of Alvarado and\\nMcDaniel, the same results follow. The district court acted within its authority\\nto bar Haymon’s claim for contractual defense and indemnity under the\\ninsurance policies, but some alternate compensation mode from the\\nreceivership estate is required, and the court could not bar his extracontractual\\nclaims against the Underwriters. However, the ultimate evaluation of\\nHaymon’s claims may differ from that of the other Appellants for two reasons,\\nwhich the district court should assess on remand. First, because his insurance\\ncoverage claim was liquidated before the final settlement ($2 million potential\\nindemnity and $1.5 million defense costs) it was ripe for judicial determination\\nunder Pendergest-Holt. 20 Second, Haymon received a bar order, perhaps\\nvaluable to him, against any further litigation concerning his involvement with\\nStanford entities.\\n\\n\\n\\n 20 Finally, as noted in regard to the other Appellants, Haymon was afforded the\\nopportunity, and availed himself of the ability to press his constitutional objections to the\\nsettlement and bar orders. There was no failure of due process and his other vaguely\\nidentified constitutional objections are meritless.\\n 27\\n\\f Case: 17-10663 Document: 00514998485 Page: 28 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n c. Appellant Louisiana Retirees\\n Unlike the foregoing Appellants, the Louisiana Retirees are not\\ncoinsureds under the insurance policies, and they are not being pursued in\\nIndirect Claim actions by the Receiver. Retirees have assiduously pursued\\nsecurities law claims against certain Stanford brokers and the Underwriters,\\nas insurers for those brokers, under the Louisiana Direct Action Statute, La.\\nR.S. 22:1269.\\n First, the parties dispute the meaning of the bar order and the extent to\\nwhich it bars the Retirees’ claims. The Receiver argues that the bar order\\napplies only to claims against the Underwriters and the Underwriters’\\nReleased Parties, defined as the officers, agents, etc. of Underwriters, and\\nexpressly excluding the officers, directors, or employees of Stanford Entities.\\nRetirees argue that it enjoins them from pursuing the Stanford Claims, defined\\nas “any action, lawsuit or claims brought by any Stanford Investor against\\nUnderwriters [or] . . . Underwriter’s Insureds.” In turn, Underwriters’\\nInsureds are defined as “any person that shall be an officer and director of any\\nStanford Entities . . . [or] any employee of any Stanford Entities.” On remand,\\nit would be appropriate for the district court to determine and clarify the\\nmeaning of the bar order as to the Retirees, keeping in mind that the district\\ncourt may not enjoin any claims by Retirees against the brokers that do not\\nimplicate the policy proceeds.\\n Second, the Retirees’ claims under the Louisiana direct action statute\\nunequivocally implicate the policy proceeds and therefore assets of the\\nreceivership. The statute specifies that an action can be brought “within the\\nterms and limits of the policy by the injured person.” La. Rev. Stat. 22:1269(A),\\n(C), (D). It “does not create an independent cause of action against the\\ninsurer[;] it merely grants a procedural right of action against an insurer where\\nthe plaintiff has a substantive cause of action against the insured.” Soileau v.\\n 28\\n\\f Case: 17-10663 Document: 00514998485 Page: 29 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nSmith True Value & Rental, 144 So. 3d 771, 780 (La. 2013). As such, the\\nReceiver could settle with the Underwriters notwithstanding the direct action\\nclaim just as he could settle regardless of the Employee Appellants’ contractual\\nclaims to policy proceeds. Further, as former investors in the Stanford entities,\\nthe Retirees were afforded a means of filing claims apart from the direct action\\nsuit, and many have availed themselves of that opportunity. Consequently,\\nthe Retirees’ direct action suit against the Underwriters amounts to a\\nredundant claim on receivership assets.\\n Nevertheless, the Retirees assert several arguments that have no\\nbearing on the permissibility of the settlement and bar order as to them. They\\ncontend first that the settlement and bar order conflict with the Supreme\\nCourt’s decision in Chadbourne & Parke LLP v. Troice, 134 S. Ct. 1058 (2014),\\nwhich they characterize as “acknowledg[ing] the Louisiana Retirees’ rights to\\nbring their state law securities claims in Louisiana state court.” But Troice\\nheld only that the Securities Litigation Uniform Standards Act did not preempt\\nthe Louisiana Appellants’ state court claims. The Court’s ruling did not bear\\non the merits of or procedure for the Retirees’ state law case.\\n Second, they contend that DSCC, 712 F.3d at 185, forbids giving the\\nreceiver the right to “control the settlement of a claim it does not own.” That\\nis certainly correct according to our previous discussion, but here, the Receiver\\nhad standing to pursue its own claims as coinsured under the Underwriters’\\npolicies, such claims perfected the Receiver’s interest in a valuable asset, and\\nTexas law provided the right to settle them even at the expense of the Retirees’\\ndirect action claims.\\n The Retirees argue that the district court should have first determined\\nthe disputed legal questions about the magnitude of, and legal rights to, the\\npolicy proceeds before approving the settlement and bar orders under In re\\nLouisiana World Exposition, Inc., 832 F.2d 1391 (5th Cir. 1987). This\\n 29\\n\\f Case: 17-10663 Document: 00514998485 Page: 30 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nargument simply misreads that case. The court in Louisiana World explicitly\\ndistinguished the facts before it from cases involving coinsureds with equal\\nclaims to the policy proceeds. Moreover, at least one disputed policy – the\\nFidelity Bond – covers only the Receivership entities. 21 It was not an abuse of\\ndiscretion for the district court to hold that equity favored avoiding costly\\nlitigation and dissipation of receivership assets by allowing the Receiver, a\\ncoinsured with equal claim to the policy proceeds, to settle with the\\nUnderwriters. Avoiding protracted legal examination of the policy exclusions,\\nwhich could just as easily bar Retirees and others from the policy proceeds,\\nwas precisely the point of the settlement.\\n Fourth, Retirees assert that the Anti-Injunction Act, 28 U.S.C. § 2283\\n(“AIA”), prevented the court from issuing its bar orders. This argument has no\\nmerit. Under the AIA, “any injunction against state court proceedings\\notherwise proper under general equitable principles must be based on one of\\nthe specific statutory exceptions to [the Anti-Injunction Act] if it is to be\\nupheld.” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281,\\n287, 90 S. Ct. 1739, 1743 (1970). The specific exceptions are express\\nauthorization by an Act of Congress, where necessary in aid of the court’s\\njurisdiction, or to protect or effectuate the court’s judgments. Id. at 288,\\n90 S. Ct. at 1743–44. The AIA does not prohibit the settlement and bar order\\nbecause, pertinent to the Retirees, they cover only those claims implicating the\\ninsurance policy proceeds and so were necessary in aid of the district court’s\\njurisdiction over those proceeds. The district court has exclusive in rem\\njurisdiction over the policy proceeds and permanent bar orders have been\\napproved as parts of settlements to secure receivership assets. See, e.g., SEC\\n\\n\\n 21 As with the other policies, the Underwriters and Receiver dispute the scope of\\ncoverage and exclusions of the Fidelity Bond, and whether the Receiver may access the\\nproceeds, but there is no argument that the Retirees may access these proceeds.\\n 30\\n\\f Case: 17-10663 Document: 00514998485 Page: 31 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nv. Parish, No. 2:07-CV-00919-DCN, 2010 WL 8347143 (D.S.C. Feb. 10, 2010)\\n(“[T]he bar order is necessary to preserve and aid this court’s jurisdiction over\\nthe receivership estate, such that the Anti-Injunction Act would not prohibit\\nthe bar order even if there were pending state court actions, which there are\\nnot.”).\\n For these reasons, the settlement and bar orders did not interfere with\\nor improperly extinguish the Retirees’ rights.\\n CONCLUSION\\n For the foregoing reasons, we VACATE the district court’s orders\\napproving the settlement and bar orders and REMAND for further\\nproceedings consistent with this opinion. 22\\n\\n\\n\\n\\n Vacatur and remand will probably necessitate the court’s reconsideration of the\\n 22\\n\\nattorneys’ fee award to the Receiver’s counsel.\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407579/\", \"author_raw\": \"EDITH H. JONES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JONES"},"judge2":{"kind":"string","value":"CLEMENT"},"judge3":{"kind":"string","value":"SOUTHWICK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630326/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff v. STANFORD INTERNATIONAL BANK, LIMITED, Defendant v. Joseph Becker; Terence Beven; Wanda Bevis; Thomas Eddie Bowden; Troy L. Lillie, Jr., Et Al, Movants-Appellants Doug McDaniel; Scott Notowich; Eddie Rollins; Cordell Haymon; Et Al, Objecting Parties-Appellants v. Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Interested Parties-Appellees Ralph S. Janvey, Appellee Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company, Plaintiffs-Appellees v. Ralph S. Janvey, in His Capacity as Court Appointed Receiver for Stanford International Bank Limited, Stanford Group Company, Stanford Capital Management L.L.C., Stanford Financial Group, and Stanford Financial Group Bldg, Defendant-Appellee v. Cordell Haymon, Intervenor-Appellant Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Plaintiffs-Appellees v. Cordell Haymon, Objecting Party-Appellant v. Ralph S. Janvey, Intervenor-Appellee Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Plaintiffs-Appellees v. Ralph S. Janvey, Intervenor Defendant-Appellee v. Cordell Haymon, Objecting Party-Appellant Cordell Haymon, Third Party Plaintiff-Appellant v. Certain Underwriters of Lloyd's of London, Claims Asserted by Claude F. Reynaud, Jr. Third Party Defendant-Appellee v. Ralph S. Janvey, Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10663 Document: 00514998485 Page: 1 Date Filed: 06/17/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-10663 FILED\n June 17, 2019\n Lyle W. Cayce\nSECURITIES AND EXCHANGE COMMISSION Clerk\n\n Plaintiff\n\nv.\n\nSTANFORD INTERNATIONAL BANK, LIMITED\n\n Defendant\n\nv.\n\nJOSEPH BECKER; TERENCE BEVEN; WANDA BEVIS;\nTHOMAS EDDIE BOWDEN; TROY L. LILLIE, JR., et al\n\n Movants - Appellants\n\nDOUG MCDANIEL; SCOTT NOTOWICH;\nEDDIE ROLLINS; CORDELL HAYMON; et al,\n\n Objecting Parties - Appellants\n\nv.\n\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\nARCH SPECIALTY INSURANCE COMPANY;\nLEXINGTON INSURANCE COMPANY,\n\n Interested Parties - Appellees\n\nRALPH S. JANVEY,\n\n Appellee\n***********************\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\n\f Case: 17-10663 Document: 00514998485 Page: 2 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nARCH SPECIALTY INSURANCE COMPANY,\n\n Plaintiffs - Appellees\n\nv.\n\nRALPH S. JANVEY, In his Capacity as Court Appointed Receiver for\nStanford International Bank Limited, Stanford Group Company, Stanford\nCapital Managment L.L.C., Stanford Financial Group, and Stanford\nFinancial Group Bldg,\n\n Defendant - Appellee\n\nv.\n\nCORDELL HAYMON,\n\n Intervenor - Appellant\n*************************************\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\nARCH SPECIALTY INSURANCE COMPANY;\nLEXINGTON INSURANCE COMPANY,\n\n Plaintiffs - Appellees\nv.\n\nCORDELL HAYMON,\n\n Objecting Party - Appellant\nv.\n\nRALPH S. JANVEY,\n\n Intervenor - Appellee\n***************************************\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\nARCH SPECIALTY INSURANCE COMPANY;\nLEXINGTON INSURANCE COMPANY,\n\n Plaintiffs - Appellees\nv.\n\n 2\n\f Case: 17-10663 Document: 00514998485 Page: 3 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n\n\nRALPH S. JANVEY,\n\n Intervenor Defendant - Appellee\nv.\n\nCORDELL HAYMON,\n\n Objecting Party - Appellant\n*********************************************\n\nCORDELL HAYMON,\n\n Third Party Plaintiff - Appellant\nv.\n\nCERTAIN UNDERWRITERS OF LLOYD’S OF LONDON, Claims asserted\nby Claude F. Reynaud, Jr.\n\n Third Party Defendant - Appellee\nv.\n\nRALPH S. JANVEY,\n\n Appellee\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n\n\nBefore JONES, CLEMENT, and SOUTHWICK, Circuit Judges.\nEDITH H. JONES, Circuit Judge:\n These appeals challenge the district court’s approval of a global\nsettlement between Ralph Janvey, the Receiver for Stanford International\nBank and related entities, and various insurance company Underwriters, who\nissued policies providing coverage for fidelity breaches, professional indemnity,\ndirectors and officers protection, and excess losses. The settlement yielded $65\n\n 3\n\f Case: 17-10663 Document: 00514998485 Page: 4 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nmillion for the Receiver’s claims against the insurance policy proceeds, but it\nwipes out, through “bar orders,” claims by coinsureds to the policy proceeds\nand their extracontractual claims against the Underwriters even if such claims\nwould not reduce or affect the policies’ coverage limits. Among the parties\nwhose claims were barred are Appellants comprising (a) two groups of former\nStanford managers and employees; (b) Cordell Haymon, a Stanford entity\ndirector who settled with the Receiver for $2 million; and (c) a group of\nLouisiana retiree-investors.\n A constellation of issues surrounding the global settlement is\nencapsulated in the question whether the district court abused its discretion\nin approving the settlement and bar orders. Based on the nature of in rem\njurisdiction and the limitations on the court’s and Receiver’s equitable power,\nwe conclude the district court lacked authority to approve the Receiver’s\nsettlement to the extent it (a) nullified the coinsureds’ claims to the policy\nproceeds without an alternative compensation scheme; (b) released claims the\nEstate did not possess; and (c) barred suits that could not result in judgments\nagainst proceeds of the Underwriters’ policies or other receivership assets.\nAccordingly, we VACATE the district court’s order approving the settlement\nand bar orders and REMAND for further proceedings consistent with this\nopinion.\n BACKGROUND\n The massive Stanford Financial Ponzi scheme defrauded more than\n18,000 investors who collectively lost over $5 billion. As part of a securities\nfraud lawsuit brought by the SEC, the district court appointed the Receiver “to\nimmediately take and have complete and exclusive control” of the receivership\nestate and “any assets traceable” to it. The court granted the Receiver “the full\npower of an equity receiver under common law,” including the right to assert\nclaims against third parties and “persons or entities who received assets or\n 4\n\f Case: 17-10663 Document: 00514998485 Page: 5 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nrecords traceable to the Receivership Estate.” SEC v. Stanford Int’l Bank, Ltd.,\n776 F. Supp. 2d 323, 326 (N.D. Tex. 2011). The district court also held that the\ncourt possessed exclusive jurisdiction over a group of insurance policies and\ntheir proceeds, at issue in this case, and ruled that, other than a lawsuit\ninvolving the Stanford criminal defendants, “[n]o persons or entities may bring\nfurther claims related to the [Proceeds] in any forum other than” the district\ncourt. Neither of these latter two orders was timely appealed.\n The policies issued to the Stanford entities covered, in different\narrangements, losses and defense costs for the entities and their officers,\ndirectors and certain employees. At issue are the following policies: a\nDirectors’ and Officers’ Liability and Company Indemnity Policy (“D&O”); a\nFinancial Institutions Crime and Professional Indemnity Policy, including\n(a) first-party fidelity coverage for employee theft (“Fidelity Bond”) and “[l]oss\nresulting directly from dishonest, malicious or fraudulent acts committed by\nan Employee,” and (b) third-party coverage for professional indemnity (“PI\nPolicy”); and an Excess Blended “Wrap” Policy (“Excess Policy”). The policy\nlimits are as follows:\n\n\n Stanford Bank Entities Stanford Brokerage Entities\nD&O Policy $5 million $5 million\nPI Policy $5 million per Claim $5 million per Claim\n $10 million aggregate $10 million aggregate\nFidelity $5 million per Loss $5 million per Loss\nBond $10 million aggregate $10 million aggregate\nExcess $45 million each Claim or Loss/$90 million aggregate\nPolicy\n\n\n\n\n 5\n\f Case: 17-10663 Document: 00514998485 Page: 6 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n The maximum amount of remaining coverage is disputed. According to\nthe district court, the Underwriters have paid some $30 million in claims under\nthe policies for insureds’ defense costs. Underwriters contend that only $46\nmillion remains available because the losses resulted from a single event – the\nPonzi scheme. The Receiver argues that the conduct implicates the aggregate\nloss limits up to $101 million of remaining coverage. The questions of coverage\nultimately depend on the identity of the insureds under each policy and the\nnature of the claims, and these issues are hotly contested. The Stanford\ncorporate entities are insured under all of the policies, but Stanford directors,\nofficers, and employees are coinsureds only under the D&O, PI, and Excess\npolicies. 1 Each policy is subject to multiple definitions and exclusions. After\nthe Receiver made numerous claims for coverage under the policies (the “Direct\nClaims”) that were met with Underwriters’ denial based on policy exclusions,\nseveral lawsuits ensued.\n The Receiver also pursued the policy proceeds indirectly by filing\nlawsuits (the “Indirect Claims”) against hundreds of former Stanford directors,\nofficers, and employees, alleging fraudulent transfers and unjust enrichment\nand/or breach of fiduciary duty. The Receiver obtained a $2 billion judgment\nagainst one former Stanford International Bank director and a $57 million\njudgment against a former Bank treasurer, both of whom were potentially\ncovered under the policies. The Receiver continues to litigate similar claims\nagainst the coinsured Appellants who were Stanford managers and employees.\nSee, e.g., Stanford International Bank, Ltd., et al., v. James R. Alguire, et al.,\nNo. 3:09-CV-0724-N (N.D. Tex., filed Dec. 18, 2019).\n\n\n\n\n 1 There is no dispute that the Appellants here are coinsured under the noted policies,\nbut not coinsured under the Fidelity bond. The chief dispute is about the effect of certain\nlimitations and exclusions within the policies.\n 6\n\f Case: 17-10663 Document: 00514998485 Page: 7 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n After eight years of sparring, the Receiver and Underwriters, together\nwith the court-appointed Examiner on behalf of Stanford investors, mediated\ntheir disputes for several months in 2015. Mediation initially resulted in a\nSettlement Proposal under which the Underwriters agreed to pay the Receiver\n$65 million, and in return the Receiver would “fully release any and all\ninsureds under the relevant policies.” The purpose of the complete release was\nto shield the Underwriters from any policy obligations to defend or indemnify\nformer Stanford personnel, including the employee Appellants, in the\nReceiver’s Indirect Claim lawsuits. The parties almost immediately disagreed\nabout the content of the settlement, however, and the Underwriters filed an\nExpedited Motion to Enforce the Settlement Agreement. The district court\ndenied the motion and instructed the parties to continue negotiating. On\nJune 27, 2016, the Receiver and Underwriters notified the court that they had\nentered into a new settlement agreement, which the Examiner supported.\n Under this new settlement, the Underwriters again agreed to pay $65\nmillion into the receivership estate, but the settlement required orders barring\nall actions against Underwriters relating to the policies or the Stanford\nEntities. Paragraph 35 of the settlement provides Underwriters the\nunqualified right to withdraw from the settlement if the court refuses to issue\nthe bar orders. The bar orders were necessary because, unlike the terms of the\nfirst proposed settlement, the Receiver is required to release only the Estate’s\nclaims against 16 directors and officers (rather than all insureds), as well as\nthe judgments already obtained against certain directors and officers. 2 All\nother former Stanford employees, officers and directors, including Appellants,\n\n\n\n 2 Oddly, the settlement releases claims only against those directors and officers who\nwere among the most culpable for the Ponzi scheme. And it releases Underwriters from any\nobligation in connection with the aforementioned judgments for $2 billion and $57 million.\nThis oddity should have been considered when assessing the fairness of the settlement.\n 7\n\f Case: 17-10663 Document: 00514998485 Page: 8 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nremain subject to ongoing or potential litigation by the Receiver once the\nlitigation stay against them is lifted. Some Appellants assert that their\nindividual costs of defending the Receiver’s ongoing actions already exceed\n$10,000. But the bar orders prevent them from suing the Underwriters for\ntheir costs of defense and indemnity under the insurance policies, even though\nthey are coinsured, or for extra-contractual or statutory claims.\n The Receiver moved for approval of the settlement and entry of the bar\norders. The district court directed notice to all interested parties, and received\nobjections from several third parties, including Appellants. The court heard\narguments of counsel regarding the settlement, but it refused to allow parties\nto offer evidence or live testimony or engage in cross-examination. After the\nhearing, parties were permitted to file additional declarations or affidavits.\n The district court approved the settlement and bar orders, denied all\nobjections, and approved the payment of $14 million of attorney fees to\nReceiver’s counsel. Separate Final Judgments and Bar Orders were entered\nin each action pending before it relating to the Stanford Entities and in\nAppellant Haymon’s and Appellant Alvarado’s separate lawsuits against the\nUnderwriters. The district court rejected all post-trial motions.\n A more complete discussion of the court’s findings will follow, but in\ngeneral, the court found that the settlement resulted from “vigorous, good\nfaith, arm’s-length, mediated negotiations” and concluded that the settlement\nwas “in all respects, fair, reasonable, and adequate, and in the best interests\nof all Persons claiming an interest in, having authority over, or asserting a\nclaim against Underwriters, Underwriters’ Insureds, the Stanford Entities,\nthe Receiver, or the Receivership Estate.” The court further found that the\nsettlement and bar orders were “fair, just, and equitable,” and it rejected the\nAppellants’ due process claims based on their exclusion from settlement talks\nand the lack of an evidentiary hearing. While the court recognized that the\n 8\n\f Case: 17-10663 Document: 00514998485 Page: 9 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nbar orders discriminate between a few Stanford officers and the Appellants, it\nreasoned that “on balance the unfairness alleged by the Objectors is either\nmitigated by other circumstances or simply outweighed by the benefit of the\nsettlement in terms of fairness, equity, reasonableness, and the best interests\nof the receivership.”\n The Appellants fall into three categories. The McDaniel Appellants and\n“Alvarado” 3 Appellants are former Stanford managers or employees from\noffices around the country (“Employees”) who seek contractual coverage under\nthe insurance policies and press extra-contractual claims against the\nUnderwriters, including for bad faith and statutory violations of the Texas\nInsurance Code. Appellant Cordell Haymon (“Haymon”) was a member of\nStanford Trust Company’s Board of Directors who settled the Receiver’s claims\nagainst him for $2 million before the instant global settlement was reached,\nand in return received the express right to pursue Underwriters for policy\ncoverage and extra-contractual claims. Finally, the Louisiana Retirees/Becker\nAppellants (“Retirees”) are former Stanford investors who sued Stanford\nbrokers covered by the insurance policies and seek to recover from the\nUnderwriters directly pursuant to the Louisiana Direct Action Statute, La.\nRev. Stat. 22:1269.\n Each group of Appellants raises different challenges to the court’s\napproval of the settlement and bar orders. They appeal from the district court’s\norder denying their objections to the proposed settlement, the Final Bar Order,\n\n\n\n\n 3 While Alvarado was originally a party to this appeal, he withdrew his individual\nappeal on April 19, 2018. The other employees to that action remain as appellants and will\nbe denominated, for the sake of convenience, Alvarado Appellants.\n\n 9\n\f Case: 17-10663 Document: 00514998485 Page: 10 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nand the Order Approving Attorneys’ Fees 4 for the Receiver’s counsel. The\nStanford Employees additionally appeal the Order denying their new trial\nmotion, and Haymon appeals from the Order denying his motion for\nreconsideration. After explaining the principles that govern the court’s\nmanagement of the Receivership, we will analyze each set of Appellants’\nobjections.\n STANDARD OF REVIEW\n A district court’s entry of a bar order, like other actions in supervising\nan equity receivership, is reviewed for abuse of discretion. SEC v. Safety Fin.\nServ., Inc., 674 F.2d 368, 373 (5th Cir. 1982); Newby v. Enron Corp., 542 F.3d\n463, 468 (5th Cir. 2008). A district court’s determination of the fairness of a\nsettlement in an equity receivership proceeding is reviewed for an abuse of\ndiscretion. Sterling v. Stewart, 158 F.3d 1199, 1202 (11th Cir. 1998)\n(“Determining the fairness of the settlement [in an equity receivership] is left\nto the sound discretion of the trial court and we will not overturn the court’s\ndecision absent a clear showing of abuse of that discretion.”). There is no abuse\nof discretion where factual findings are not clearly erroneous and rulings are\nwithout legal error. Marlin v. Moody Nat. Bank, N.A., 533 F.3d 374, 377 (5th\nCir. 2008). A district court’s denial of a Rule 59 motion for a new trial or to\nalter or amend a judgment also is reviewed for an abuse of discretion. St. Paul\nMercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997). This\nCourt reviews de novo a district court’s application of exceptions to the Anti–\nInjunction Act as a question of law. Moore v. State Farm Fire & Cas. Co.,\n556 F.3d 264, 269 (5th Cir. 2009).\n\n\n\n\n 4The amount and propriety of the Receiver’s very high fee request is not substantively\nbriefed by any party and is therefore waived, except to the extent that on remand the fee\nought to be reconsidered in light of this opinion.\n 10\n\f Case: 17-10663 Document: 00514998485 Page: 11 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n DISCUSSION\n I. General Receivership Principles\n A district court has broad authority to place assets into receivership “to\npreserve and protect the property pending its final disposition.” Gordon v.\nWashington, 295 U.S. 30, 37, 55 S. Ct. 584 (1935); see also Gilchrist v. Gen.\nElec. Capital Corp., 262 F.3d 295, 302 (4th Cir. 2001) (“the district court has\nwithin its equity power the authority to appoint receivers and to administer\nreceiverships”) (citing Fed. R. Civ. P. 66). The primary purpose of the equitable\nreceivership is the marshaling of the estate’s assets for the benefit of aggrieved\ninvestors and other creditors of the receivership entities. See SEC v. Hardy,\n803 F.2d 1034, 1038 (9th Cir. 1986). Receivers appointed by a federal court are\ndirected to “manage and operate” the receivership estate “according to the\nrequirements of the valid laws of the State in which such property is situated,\nin the same manner that the owner or possessor thereof would be bound to do\nif in possession thereof.” 28 U.S.C. § 959(b).\n In general, the Receiver has wide powers to acquire, organize and\ndistribute the property of the receivership. A properly appointed receiver is\n“vested with complete jurisdiction and control of all [receivership] property\nwith the right to take possession thereof.” 28 U.S.C. § 754. The Receiver is\nobliged to allocate receivership assets among the competing claimants\naccording to their respective rights and, in this case, under the laws of Texas,\nwhere the Stanford Financial Group was headquartered. The district court\nruled, in a 2009 order that was not appealed, that the insurance policies and\nproceeds are property of the estate subject to the court’s exclusive in rem\njurisdiction.\n Once assets have been placed in receivership, “[i]t is a recognized\nprinciple of law that the district court has broad powers and wide discretion to\ndetermine the appropriate relief in an equity receivership.” Safety Fin.,\n 11\n\f Case: 17-10663 Document: 00514998485 Page: 12 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n674 F.2d at 372–73 (citing SEC v. Lincoln Thrift Assoc., 577 F.2d 600, 606 (9th\nCir. 1978)). This discretion derives not only from the statutory grant of power,\nbut also the court’s equitable power to fashion appropriate remedies as\n“ancillary relief” measures. See SEC v. Wencke, 622 F.2d 1363, 1369 (9th Cir.\n1980). Courts have accordingly exercised their discretion to issue bar orders\nto prevent parties from initiating or continuing lawsuits that would dissipate\nreceivership assets or otherwise interfere with the collection and distribution\nof the assets. See SEC v. Stanford Int’l Bank Ltd., 424 F. App’x 338, 340 (5th\nCir. 2011) (“It is axiomatic that a district court has broad authority to issue\nblanket stays of litigation to preserve the property placed in receivership\npursuant to SEC actions.”). Receivership courts, like bankruptcy courts, may\nalso exercise discretion to approve settlements of disputed claims to\nreceivership assets, provided that the settlements are “fair and equitable and\nin the best interests of the estate.” Ritchie Capital Mgmt., L.L.C. v. Kelley,\n785 F.3d 273, 278 (8th Cir. 2015) (citing Tri–State Fin., LLC v. Lovald,\n525 F.3d 649, 654 (8th Cir. 2008)).\n Neither a receiver’s nor a receivership court’s power is unlimited,\nhowever. See Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S. Ct. 1858, 1878\n(1971) (“The remedial powers of an equity court must be adequate to the task,\nbut they are not unlimited.”). Courts often look to the related context of\nbankruptcy when deciding cases involving receivership estates. The district\ncourt here acknowledged that the purpose of bankruptcy receiverships and\nequity receiverships is “essentially the same—to marshal assets, preserve\nvalue, equally distribute to creditors, and, either reorganize, if possible, or\norderly liquidate.” Janvey v. Alquire, No. 3:09-cv-0724, 2014 WL 12654910, at\n*17 (N.D. Tex. July 30, 2014); see also SEC v. Wealth Mgmt. LLC, 628 F.3d\n323, 334 (7th Cir. 2010) (“The goal in both securities-fraud receiverships and\nliquidation bankruptcy is identical—the fair distribution of the liquidated\n 12\n\f Case: 17-10663 Document: 00514998485 Page: 13 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nassets”). That their purpose is the same “makes sense” and reflects their\nshared legal heritage, since “federal equity receiverships were the predecessor\nto Chapter 7 liquidations and Chapter 11 reorganizations.” Alquire, 2014 WL\n12654910, at *17 (citing Duparquet Huot & Moneuse Co. v. Evans, 297 U.S.\n216, 221, 56 S. Ct. 412, 414 (1936)). The district court also recognized that “[i]n\nthis particular case, the purpose and objectives of the receivership, as\ndelineated in the Receivership Order, closely reflect the general purpose\nshared by the Bankruptcy Code and federal equity receiverships,” and it\nconcluded that “[u]ltimately, this particular receivership is the essential\nequivalent of a Chapter 7 bankruptcy.” Id. at *18.\n Unfortunately, two interrelated limitations on the Stanford receivership\nwere downplayed by the district court in its approval of the settlement and bar\norders. Both derive from the broader principle that the receiver collects and\ndistributes only assets of the entity in receivership. The first applies to the\nReceiver’s standing: “[l]ike a trustee in bankruptcy or for that matter the\nplaintiff in a derivative suit, an equity receiver may sue only to redress injuries\nto the entity in receivership, corresponding to the debtor in bankruptcy and the\ncorporation of which the plaintiffs are shareholders in the derivative suit.”\nScholes v. Lehmann, 56 F.3d 750, 753 (7th Cir. 1995) (emphasis added) (citing,\ninter alia, Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S. Ct.\n1678 (1972)). The Scholes case involved an SEC receivership, but Caplin, on\nwhich it relied, was a Supreme Court decision in a Chapter X reorganization\ncase. This court endorsed the Scholes limitation as applied to this receivership\nin Janvey v. Democratic Senatorial Campaign Comm., Inc. (“DSCC”), 712 F.3d\n185, 190–93 (5th Cir. 2013). And following Caplin, a sister circuit held, “a\ntrustee, who lacks standing to assert the claims of creditors, equally lacks\nstanding to settle them.” DSQ Prop. Co., Ltd. v. DeLorean, 891 F.2d 128, 131\n(6th Cir. 1989); see also Wuliger v. Mfr’s. Life Ins. Co., 567 F.3d 787, 794 (6th\n 13\n\f Case: 17-10663 Document: 00514998485 Page: 14 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nCir. 2009) (“Because the receivership entities all would have lacked standing,\nand because of the rule that receivers’ rights are limited to those of the\nreceivership entities, the Receiver also lacked standing [to sue for\nmisrepresentations by brokers to defrauded investors].”).\n The second limitation, arising from the district court’s in rem\njurisdiction, is that the court may not exercise unbridled authority over assets\nbelonging to third parties to which the receivership estate has no claim. Put\nanother way, in the course of administering this receivership, this district court\npreviously rejected a broad reading of 28 U.S.C. § 754 that suggested the\ncourt’s in rem jurisdiction over the property would necessarily reach every\nclaim relating to that property. See Rishmague v. Winter, No. 3:11-cv-2024-N,\n2014 WL 11633690, at *2 (N.D. Tex. Sept. 9, 2014).\n Thus, this court and others have held that a bankruptcy court may not\nauthorize a debtor to enter into a settlement with liability insurers that enjoins\nindependent third-party claims against the insurers. See, e.g., Matter of Zale\nCorp., 62 F.3d 746 (5th Cir. 1995) (refusing to countenance a bankruptcy\ncourt’s authority to enforce a settlement prohibiting third-party bad faith\ninsurance claims because the claims were not property of the bankruptcy\nestate). Similarly, “if [the coinsureds’] portion of the [insurance] Proceeds is\ntruly not property of the Estate, then the bankruptcy court has no authority to\nenjoin suits against the [coinsureds].” In re Vitek, 51 F.3d 530, 536 (5th Cir.\n1995); see also In re SportStuff, Inc., 430 B.R. 170, 175 (B.A.P. 8th Cir. 2010)\n(bankruptcy court lacked jurisdiction or authority to impair or extinguish\nindependent contractual rights of vendors that were additional insureds under\nthe debtor’s policies). As these cases illustrate, bankruptcy courts lack\n“jurisdiction” to enjoin such claims.\n The prohibition on enjoining unrelated, third-party claims without the\nthird parties’ consent does not depend on the Bankruptcy Code, but is a maxim\n 14\n\f Case: 17-10663 Document: 00514998485 Page: 15 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nof law not abrogated by the district court’s equitable power to fashion ancillary\nrelief measures. Contrary to the Receiver’s assertion, the fact that the\nbankruptcy statute, 28 U.S.C. § 1334(b), limits jurisdiction to proceedings\n“arising in or related to” bankruptcy cases does not diminish the application of\nZale or Vitek to equity receiverships. As noted, bankruptcy and equity\nreceiverships share common legal roots. 5 See In re Davis, 730 F.2d 176, 183–\n84 (5th Cir. 1984) (the Bankruptcy Code arms bankruptcy courts with broad\npowers analogous to a court in equity). Moreover, to justify its decision denying\nbankruptcy court jurisdiction over third-party claims, the court in Zale quoted\nthe Supreme Court in a civil rights class action case: “[o]f course, parties who\nchoose to resolve litigation through settlement may not dispose of the claims\nof a third party, and a fortiori may not impose duties or obligations on a third\nparty, without that party’s agreement. A court’s approval of a consent decree\nbetween some of the parties therefore cannot dispose of the valid claims of\nnonconsenting intervenors . . . .” Zale, 62 F.3d at 757 n.26 (citing Local No. 93\nv. City of Cleveland, 478 U.S. 501, 529, 106 S. Ct. 3063, 3079, (1986)). 6 All of\n\n\n\n 5 Modern bankruptcy reorganization law originated with Section 77B of the\nBankruptcy Act of 1934, the purpose of which was to codify best practices in what had\nformerly been known as equity receiverships. See Duparquet Huot & Moneuse Co. v. Evans,\n297 U.S. 216, 222–24, 56 S. Ct. 412, 415–17 (1936). Section 77B(a), in turn, stated that the\nbankruptcy court’s powers are those “which a Federal court would have had it appointed a\nreceiver in equity of the property of the debtor . . . .” Id. at 221, 56 S. Ct. at 415.\n\n 6 Local No. 93 is merely one example of the Supreme Court’s rejection of the use of\nconsent decrees to extinguish the claims of non-consenting third-parties, for “[a] voluntary\nsettlement in the form of a consent decree between one [party] and [another party] cannot\npossibly ‘settle,’ voluntarily or otherwise, the conflicting claims of another group of [parties]\nwho do not join in the agreement. This is true even if the second group of [parties] is a party\nto the litigation.” Martin v. Wilks, 490 U.S. 755, 755–68, 109 S. Ct. 2180, 2181–88 (1989).\nIndeed, “[a]ll agree” that “[i]t is a principle of general application in Anglo-American\njurisprudence that one is not bound by a judgment in personam in a litigation in which he is\nnot designated as a party or to which he has not been made a party by service of process.” Id.\n(citing Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 117 (1940)).\n\n 15\n\f Case: 17-10663 Document: 00514998485 Page: 16 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nthis makes clear that it is not the subject matter or statutory limitations\ndriving this limitation, and federal district courts have no greater authority in\nequity receiverships to ignore these bedrock propositions, because a “court in\nequity may not do that which the law forbids.” United States v. Coastal Ref. &\nMktg., Inc., 911 F.2d 1036, 1043 (5th Cir. 1990).\n Rather than reckon with the limits on the Receiver’s standing and the\ncourt’s equitable power, the district court here cited an unpublished Fifth\nCircuit case, SEC v. Kaleta, No. 4:09-cv-3674, 2012 WL 401069, at *4 (S.D. Tex.\nFeb. 7, 2012), aff’d., 530 F. App’x. 360 (5th Cir. 2013), to support both the\nsettlement and bar orders. Importantly, Kaleta is an unpublished, non-\nprecedential decision of this court. Not only that, but reading it as the district\ncourt and Appellees here advocate would mean investing the Receiver with\nunbridled discretion to terminate the third-party claims against a settling\nparty that are unconnected to the res establishing jurisdiction. That is\nunprecedented. But Kaleta is in any event distinguishable and not\ninconsistent with the above-stated principles. In Kaleta, the bar order\nprevented defrauded investors from suing parties closely affiliated with the\nentity in receivership after the parties had agreed to make good on their\nguarantees to the receiver. Moreover, the settling parties would have been\ncodefendants with receivership entities, leading to the possibility of their\nasserting indemnity or contribution from the estate. The court was forestalling\na race to judgment that would have diminished the recovery of all creditors\nagainst receivership assets. That bar order protected the assets of the\nreceivership estate, whereas the bar orders before us extend beyond\nreceivership assets.\n The Receiver also contends that the district court may permanently\nenjoin the claims of non-consenting third parties based on general statements\nabout ancillary powers found in SEC cases such as Wencke and Safety\n 16\n\f Case: 17-10663 Document: 00514998485 Page: 17 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nFinancial Services. We disagree. These cases stand only for the proposition\nthat, in some circumstances, federal courts may use injunctive measures, such\nas stays, “where necessary to protect the federal receivership.” See Wencke,\n622 F.2d at 1370; Safety Fin. Serv., 674 F.2d at 372 n.5 (distinguishing Wencke,\nwhich “involved the much broader question of a federal court’s power to enjoin\nnonparty state actions against receivership assets.”) (emphasis added). In fact,\nthe court in Wencke recognized that its holding was limited to the propriety of\nstaying third-party “proceedings against a court-imposed receivership.”\nWencke, 622 F.2d at 1371 (emphasis added). Correctly read, these cases\nexplain that in rem jurisdiction over the receivership estate imbues the district\ncourt with broad discretion to shape equitable remedies necessary to protect\nthe estate. 7 They do not support that a district court’s in rem jurisdiction over\nthe estate may serve as a basis to permanently bar and extinguish\nindependent, non-derivative third-party claims that do not affect the res of the\nreceivership estate.\n The Appellees emphasize the recent decision SEC v. DeYoung, 850 F.3d\n1172 (10th Cir. 2017), as supporting their argument that an equity court’s\npermanent bar order against third parties is appropriate when tied to a\nsettlement that secures receivership assets. Like many of their arguments,\nhowever, this assertion proves too much. DeYoung is a narrow and deliberately\nfact-specific opinion. See DeYoung, 850 F.3d at 1182–83. The court approved\na bar order preventing three defrauded IRA Account holders (out of over 5,500\nvictims) from pursuing claims against the depository bank in which the\naccounts had been illegally commingled. Notably, however, the court\ndemonstrated that (1) the claims of the barred investors precisely mirrored\n\n\n 7 See also SEC v. Stanford Int’l Bank, Ltd., 424 F. App’x. 338, 340 (5th Cir. 2011) (“It\nis axiomatic that a district court has broad authority to issue blanket stays of litigation to\npreserve the property placed in receivership pursuant to SEC actions.”) (emphasis added).\n 17\n\f Case: 17-10663 Document: 00514998485 Page: 18 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nclaims that had been asserted and settled by the receiver; (2) averted a\nduplicative lawsuit whereby the bank could have asserted its contract right to\nindemnity from the receivership assets; and (3) provided the account holders\nwith a claim against the receivership estate. The court simply channeled\nredundant claims into the receivership while preventing diminution of\nreceivership assets.\n Returning to the broad issue in this case, whether the district court\nabused its discretion in approving the settlement and bar orders, there are two\nsubparts to the question. The first is whether the district court’s equitable\npower to fashion ancillary relief could be used to bar claims by insureds to\nproceeds of the Underwriters’ policies, which are property within the\nreceivership estate. The second is whether the court’s equitable power may be\nused to bar third-party claims, like tort or statutory claims, against the\nUnderwriters but unconnected to the property of the Receivership. The\nanswers to these questions vary according to the Appellants’ claims. Texas\nlaw, unless otherwise noted, applies by virtue of 28 U.S.C. § 959(b).\nII. Party Contentions\n a. Appellants Alvarado and McDaniel\n The McDaniel and Alvarado Appellants are all former Stanford\nmanagers or employees who are being sued by the Receiver for clawbacks of\ntheir compensation via the Receiver’s Indirect Claims on the Underwriters’\npolicies. Appellants seek coverage under the insurance policies, which\nUnderwriters have denied, to defend against these lawsuits and indemnify\ntheir losses. Appellants object to the settlement and bar orders on numerous\ngrounds. From a practical standpoint, the settlement will exhaust the\nUnderwriters’ policy proceeds, leaving these Appellants wholly uninsured\nagainst the Receiver’s lawsuits. The bar orders, moreover, prevent them from\npursuing against the Underwriters not only breach of contract claims for\n 18\n\f Case: 17-10663 Document: 00514998485 Page: 19 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nviolating the duties to defend and indemnify, but also statutory and tort claims\nthat, if successful, would not be paid from policy proceeds and would not reduce\nReceivership assets.\n The district court’s rejection of Appellants’ objections rested generally on\nits conclusion that the settlement and bar orders are fair, equitable, reasonable\nand in the best interests of the receivership estate. As has been noted, the\ncourt cited only the Kaleta case, affirmed by a non-precedential decision of this\ncourt, in support of its conclusions. The court’s reasoning invoked the\nperceived necessity of a settlement, together with the bar orders, to resolve\nfairly and efficiently the competing claims of the Receiver and Underwriters\nabout policy coverage and assure the maximum recovery for Stanford’s\ndefrauded investors. Without the bar orders, the court stated, Underwriters\nwould not settle. The court pointedly refused to decide whether policy\nexclusions apply to the Appellants’ coverage claims. Even if such exclusions\nbarred coverage, the court added, then the Receiver might also be barred by\nthe same exclusions and all potential benefit of the settlement would be lost.\nIn sum, the Appellants would lose out no matter what: their claims could be\nbarred by exclusions, held uninsurable, or the Receiver, having the right to\nsettle, would exhaust the proceeds first. 8 The balance of benefits to the\nreceivership estate against Appellants’ admitted losses weighed in favor of the\ncourt’s approving the settlement and bar orders.\n\n\n\n 8 Implicit in the district court’s reference to the Receiver’s right to settle and exhaust\nall the policy proceeds is apparently its reliance on Texas law, which allows an insurer to\nsettle with fewer than all of its co-insureds when the policy proceeds are insufficient to satisfy\nall of the claims. See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex.\n1929); Pride Transp. v. Cont’l Cas. Co., 511 F. App’x 347, 351 (5th Cir. 2013); Travelers\nIndem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 765–68 (5th Cir. 1999); see also Tex.\nFarmers Ins. Co. v. Soriano, 881 S.W.2d 312, 315 (Tex. 1994). The court, however, never\nreferenced these cases.\n\n 19\n\f Case: 17-10663 Document: 00514998485 Page: 20 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n In the course of explaining its decision, however, the court made some\nerrors. First, its broad statement that the settlement would fail without the\nbar orders did not account for the fact that the parties had mediated a prior\nsettlement that required no bar orders against these Appellants because the\nReceiver had agreed to release all of its claims against them. “Global peace”\nthere was achieved not by bar orders, but by the Receiver’s agreeing to drop\nthe Indirect Claim suits. The final settlement required the broad bar orders\nonly because the Receiver, for whatever reason, insisted that it must continue\nto pursue hundreds of clawback actions. 9 The court’s broad statement also\nneglected to note that, despite the Receiver’s overall insistence to the contrary,\nthe Receiver nonetheless released its claims against sixteen former Stanford\nofficers and employees in the final settlement.\n Second, the court, perhaps inadvertently, did not address the fact that\nAppellants were foreclosed from sharing in the assets recovered by the\nReceiver by filing claims against the estate.\n Third, the court failed to distinguish between the Appellants’ two\nseparate types of claims – contractual claims for defense and indemnity\npayable (if successful) from policy proceeds in competition with investors’\nclaims to the Receivership assets; and independent, non-derivative, third-\nparty claims for tort and statutory violations, which would be satisfied (if\nsuccessful) out of Underwriters’ assets. In this connection, the court also\nundervalued the Appellants’ claims for indemnity by disregarding Pendergest-\nHolt. In that case, this court held that the D&O policies should provide up-\nfront reimbursement of defense costs in Stanford insureds’ criminal cases\n\n\n\n 9 Indeed, when the Underwriters moved the district court to enforce the terms of the\nmediated settlement, their motion queried the benefits to be reaped, other than in the\nReceiver’s legal fees, from these time-consuming suits against relatively poor former\nemployees targeted by the Receiver.\n 20\n\f Case: 17-10663 Document: 00514998485 Page: 21 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\npending a separate judicial proceeding to resolve the coverage question.\nPendergest-Holt v. Certain Und. at Lloyd’s of London, 600 F.3d 562, 572–74\n(5th Cir. 2010). Although carefully hedged, this decision offered Appellants\nthe prospect of possible, temporary relief for their mounting defense costs and\nwas not “wholly inapplicable” to the decision concerning the settlement and\nbar orders. But in any event, the court did not analyze the ramifications of\nAppellants’ distinct claims against Receivership assets and claims wholly\nindependent of receivership assets.\n i. Contractual Claims for Defense and Indemnity\n Reviewing first the settlement and bar of Appellants’ contractual claims\nagainst the policy proceeds that are property of the receivership estate, we find\nthat the court abused its discretion by extinguishing Appellants’ claims to the\npolicy proceeds, while making no provision for them to access the proceeds\nthrough the Receiver’s claims process. This undermines the fairness of the\nsettlement.\n As the district court observed, some settlement with the Underwriters\nwas prudent because of the sheer magnitude of claims far beyond the policies’\ncoverage, and because the scope of coverage, dependent on multiple, insured-\nspecific factual and legal questions, is unclear. What is clear in Texas law, as\nconceded by Appellants, is that an insurer may settle with fewer than all of its\nco-insureds when the policy proceeds are insufficient to satisfy all of the claims.\nSee G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex.\n1929); Pride Transp. v. Continental Cas. Co., 511 F. App’x 347, 351 (5th Circuit\n2013); Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 765–68\n(5th Cir. 1999); see also Farmers Insurance Co. v. Soriano, 881 S.W.2d 312, 315\n\n\n\n\n 21\n\f Case: 17-10663 Document: 00514998485 Page: 22 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n(Tex. 1994). 10 Although the district court did not cite these cases, its ruling\nsquares with them and supports its cost/benefit calculation for the\nReceiver/Underwriters’ settlement to the detriment of Appellants’ contractual\nclaims.\n But not only did the settlement expressly foreclose the Appellants from\nsharing in the insurance policy proceeds of which they are coinsureds, the\nAppellants are not even allowed to file claims against the Receivership estate.\nUnlike the Stanford investors and the Receiver’s attorneys, who can pursue\nrestitution through the Receiver’s claims process, Appellants have no access to\nthe claims process. The Settlement Agreement specifically restricts payment\nof the Proceeds to the Receivers’ attorneys and the Stanford investors and\nspecifically excludes Stanford employees and management, including\nAppellants. For these Appellants, should the Receiver continue to pursue\nthem, their claims against the Underwriters offer the only avenue of recovery.\nThis alone serves to distinguish this case from Kaleta, which approved the\nsettlement because, inter alia, the settlement agreement “expressly permits”\nthose affected by the bar order “to pursue their claims by ‘participat[ing] in the\nclaims process for the Receiver's ultimate plan of distribution for the\nReceivership Estate.’” See Kaleta, 530 F. App’x at 362–63 (alteration in\noriginal). Barring Appellants’ claims to coverage under their insurance\npolicies by claiming the proceeds of these policies as property of the\nReceivership, and then barring Appellants’ from accessing even a portion of\nthese proceeds through the Receivership claim process, undermines the\nfairness of the settlement.\n\n\n\n 10 Soriano may not squarely apply to the extent that the settlement does not, on its\nface, exhaust the policy limits. But this uncertainty in the law meant that settlement\nbetween the Receiver and the Underwriters was fair game.\n\n 22\n\f Case: 17-10663 Document: 00514998485 Page: 23 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n The district court and Receiver lacked authority to dispossess claimants\nof their legal rights to share in receivership assets “for the sake of the greater\ngood.” The court’s duty, as previously described, is to assure that all claimants\nagainst the Receivership have a reasonable opportunity to share in the estate’s\nassets. Given the numerous exclusions to policy coverage, 11 the Appellants’\nentitlement to proceeds may appear weak, but the court disclaimed deciding\ncoverage issues, and the Appellants have identified several reasons, in addition\nto Pendergest-Holt, why their contractual claims might prevail on final\nadjudication. 12\n Rather than extinguish the Appellants’ contractual claims, the court\ncould have authorized them to be filed against the Receivership in tandem with\nthe Stanford investors’ claims. Such “channeling orders” are often employed\nto afford alternative satisfaction to competing claimants to receivership assets\nwhile limiting their rights of legal recourse against the assets. See, e.g.,\nDeYoung, 850 F.3d at 1182; see also Kaleta, 530 F. App’x at 360 (approving\nclaims filing in receivership for barred litigants). In any event, the court may\nhave intended to channel the Appellants’ claims here but simply overlooked\ntheir omission from the extant procedures. 13\n\n\n\n The myriad of contested policy exclusions include the insured versus insured, money\n 11\n\nlaundering, fraud, intentional corporate or business policy, and prior knowledge exclusions.\n\n 12 Appellants explain that a significant number of their group have no personal\nliability, and, inferentially, should not be subject to policy exclusions, because they did not\nsell Stanford CDs to investors. Further, because the Receiver’s claims against the Appellants\nare not derivative, any recovery from the proceeds would not at all reduce or offset the\nAppellants’ liability for fraudulent transfers. Finally, Appellants assert viable defenses to\nthe clawback actions based, in part, on Texas law in this Receivership. See Janvey v. Golf\nChannel, Inc., 487 S.W.3d 581, 582 (Tex. 2016) (recognizing defense to fraudulent transfer of\nreasonably equivalent value received).\n\n 13The Receiver and Underwriters contend that in lieu of other modes of compensation\nthrough the receivership, these Appellants have received “benefits,” however small, from the\nsettlement because the insurance proceeds that have gone into the receivership estate offset\n 23\n\f Case: 17-10663 Document: 00514998485 Page: 24 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n ii. Extracontractual Claims for Tort and Statutory Violations\n By ignoring the distinction between Appellants’ contractual and\nextracontractual claims against Underwriters, the district court erred legally\nand abused its discretion in approving the bar orders. 14 These claims,\nincluding common law bad faith breach of duty and claims under the Texas\nInsurance Code, lie directly against the Underwriters and do not involve\nproceeds from the insurance policies or other receivership assets. 15 These\ndamage claims against the Underwriters exist independently; they do not arise\nfrom derivative liability nor do they seek contribution or indemnity from the\nestate. 16 As the preceding discussion explains in detail, receivership courts\nhave no authority to dismiss claims that are unrelated to the receivership\nestate. That the district court was “looking only to the fairness of the\nsettlement as between the debtor and the settling claimant [and ignoring third-\nparty rights] contravenes a basic notion of fairness.” Zale, 62 F.3d at 754\n\n\n\ntheir potential liability in the Receiver’s and other suits. The district court made no such\nfinding, and we see no basis in the record for it.\n\n 14 The Receiver and Underwriters would pretermit any such distinction by contending\nthat unless the Appellants had valid contractual claims for insurance from the Underwriters’\npolicies, they could not bring extracontractual claims. This may well be accurate. The\ndistrict court, however, refused to rule on the viability of Appellants’ contractual claims, and\nwe need not undertake that task here. The basis of settlement for all concerned is to avoid\ntedious litigation of insurance coverage claims.\n\n 15This principle has been described above in the related context of bankruptcy. See\nMatter of Zale Corp., 62 F.3d 746, 756–57 (5th Cir. 1995); Matter of Vitek, Inc., 51 F.3d 530,\n538 (5th Cir. 1995); In re Sportstuff, Inc., 430 B.R. 170, 178–79 (B.A.P. 8th Cir. 2010); see also\nMatter of Buccaneer Res., LLC, 912 F.3d 291, 293–97 (5th Cir. 2019) (explicating the\ndifference between derivative and non-derivative injuries and holding that a tortious\ninterference claim by a former company president against the outside lenders is non-\nderivative and separate from the bankruptcy estate).\n\n 16 See SEC v. DeYoung, 850 F.3d 1172; In re Heritage Bond Litig., 546 F.3d 667, 680\n(9th Cir. 2008) (discussing settlement of a securities class action and distinguishing between\nclaims for codefendant contribution and independent claims against settling defendants;\nformer could be dismissed by bar order, but latter claims could not be).\n 24\n\f Case: 17-10663 Document: 00514998485 Page: 25 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n(alteration in original) (citing United States v. AWECO, Inc., 725 F.2d 293, 298\n(5th Cir.)).\n As discussed above, the Receiver lacked standing to settle independent,\nnon-derivative, non-contractual claims of these Appellants against the\nUnderwriters. See DSCC, 712 F.3d at 190, 193 (receiver “has standing to\nassert only the claims of the entities in receivership, not the claims of the\nentities’ investor-creditors [coinsureds] . . .”). Of course, the Receiver and\nUnderwriters were, as Appellants’ counsel colorfully described, all too happy\nto compromise at the expense of Appellants’ rights. The court purported to\njustify this result by claiming that “the bar orders are not settling claims, they\nare enjoining them.” No matter the euphemism, a permanent bar order is a\ndeath knell intended to extinguish the claims, which are a property interest,\nhowever valued, of the Appellants.\n Moreover, in approving the settlement and bar orders against these\nAppellants, the district court overlooked problems inherent in the settling\nparties’ positions. The Underwriters’ position was in conflict with the\nAppellants: by means of the bar orders, the Underwriters limited their\nexposure to further costly and time-consuming litigation over Appellants’ non-\nderivative extracontractual claims against them. The Receiver was enabled by\nthe settlement and bar orders to place Appellants in a vise: preserving his\nability to sue Appellants for clawbacks even as the agreement stripped\nAppellants’ access to any recompense from the Underwriters. 17 These\n\n\n\n\n 17 The mediated settlement, in contrast, averted these conflicts of interest with the\nReceiver’s release of claims against Appellants offsetting the Underwriters’ potential\nextracontractual liability.\n\n 25\n\f Case: 17-10663 Document: 00514998485 Page: 26 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nproblems cast grave doubt on the fairness and equity of the settlement and bar\norders reached without Appellants’ participation. 18\n In sum, although we sympathize with the impetus to settle difficult and\natomized issues of insurance coverage rather than dissipate receivership\nassets in litigation, the settlement and bar orders violated fundamental limits\non the authority of the court and Receiver. The court and Receiver could not\nabrogate contractual claims of these Appellants to proceeds of Underwriters’\npolicies without affording them an alternative compensation scheme similar,\nif not identical, to the claims process for Stanford investors. The court could\nnot authorize the Receiver and Underwriters to compromise their differences\nwhile extinguishing the Appellants’ extracontractual claims against\nUnderwriters. Equity must follow the law, which here constrains the court’s\nand Receiver’s authority to protecting the assets of the receivership and claims\ndirectly affecting those assets. 19\n b. Appellant Cordell Haymon\n Like the Alvarado and McDaniel Appellants, Appellant Cordell Haymon,\na member of Stanford Trust Company’s board of Directors, was targeted by the\n\n\n\n When compared with DeYoung, 850 F.3d at 1182–83, the unsustainability of the\n 18\n\nsettlement and bar orders here is manifest. Unlike that case, the extracontractual claims of\nthese Appellants do not parallel those of the Receiver, Underwriters possess no\ncontribution/indemnity claim against the receivership estate, and Appellants have been\nprovided no channel to assert claims in the receivership.\n\n 19We reject Appellants’ due process claims against the settlement and bar orders.\nThey contend that because they “had an interest in” the outcome of the settlement, and the\nBar Order “fully and finally adjudicates Appellants’ independent state law contract and tort\nclaims,” due process required at least the ability to introduce evidence at the hearing.\nMcDaniel presses other constitutional claims. But Appellants were provided notice of the\nsettlement hearing, were able to fully brief their position and provide affidavits, and they\nhave offered nothing more on appeal. Although excluded from the settlement negotiations,\nthey have shown no legal requirement that they be allowed to participate in a settlement\nresolving claims for reimbursement against the limited policy proceeds. The applicable Texas\nlaw allows insurers to settle with fewer than all of the insureds in such circumstances.\nAppellants’ due process arguments fail, and McDaniel’s other claims are meritless.\n 26\n\f Case: 17-10663 Document: 00514998485 Page: 27 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nReceiver and sought coverage of his defense costs under the insurance policies.\nAfter the Underwriters denied his claim for coverage, he settled the Receiver’s\nfiduciary duty breach suit for $2 million. Haymon asserts that he relied on the\nlanguage of his settlement agreement, which specifically authorized the\ncontinuation of his suit against the Underwriters. Only a few months later,\nhowever, the final proposed settlement undid his expectations of recovery from\nthe Underwriters. Haymon requested to intervene in the initial coverage\ndispute between Underwriters and the Receiver, and he filed objections to the\nproposed settlement. He argues now that the district court erred in barring all\nof his contractual and extracontractual tort and statutory claims against the\nUnderwriters.\n To the extent that Haymon’s claims mirror those of Alvarado and\nMcDaniel, the same results follow. The district court acted within its authority\nto bar Haymon’s claim for contractual defense and indemnity under the\ninsurance policies, but some alternate compensation mode from the\nreceivership estate is required, and the court could not bar his extracontractual\nclaims against the Underwriters. However, the ultimate evaluation of\nHaymon’s claims may differ from that of the other Appellants for two reasons,\nwhich the district court should assess on remand. First, because his insurance\ncoverage claim was liquidated before the final settlement ($2 million potential\nindemnity and $1.5 million defense costs) it was ripe for judicial determination\nunder Pendergest-Holt. 20 Second, Haymon received a bar order, perhaps\nvaluable to him, against any further litigation concerning his involvement with\nStanford entities.\n\n\n\n 20 Finally, as noted in regard to the other Appellants, Haymon was afforded the\nopportunity, and availed himself of the ability to press his constitutional objections to the\nsettlement and bar orders. There was no failure of due process and his other vaguely\nidentified constitutional objections are meritless.\n 27\n\f Case: 17-10663 Document: 00514998485 Page: 28 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\n c. Appellant Louisiana Retirees\n Unlike the foregoing Appellants, the Louisiana Retirees are not\ncoinsureds under the insurance policies, and they are not being pursued in\nIndirect Claim actions by the Receiver. Retirees have assiduously pursued\nsecurities law claims against certain Stanford brokers and the Underwriters,\nas insurers for those brokers, under the Louisiana Direct Action Statute, La.\nR.S. 22:1269.\n First, the parties dispute the meaning of the bar order and the extent to\nwhich it bars the Retirees’ claims. The Receiver argues that the bar order\napplies only to claims against the Underwriters and the Underwriters’\nReleased Parties, defined as the officers, agents, etc. of Underwriters, and\nexpressly excluding the officers, directors, or employees of Stanford Entities.\nRetirees argue that it enjoins them from pursuing the Stanford Claims, defined\nas “any action, lawsuit or claims brought by any Stanford Investor against\nUnderwriters [or] . . . Underwriter’s Insureds.” In turn, Underwriters’\nInsureds are defined as “any person that shall be an officer and director of any\nStanford Entities . . . [or] any employee of any Stanford Entities.” On remand,\nit would be appropriate for the district court to determine and clarify the\nmeaning of the bar order as to the Retirees, keeping in mind that the district\ncourt may not enjoin any claims by Retirees against the brokers that do not\nimplicate the policy proceeds.\n Second, the Retirees’ claims under the Louisiana direct action statute\nunequivocally implicate the policy proceeds and therefore assets of the\nreceivership. The statute specifies that an action can be brought “within the\nterms and limits of the policy by the injured person.” La. Rev. Stat. 22:1269(A),\n(C), (D). It “does not create an independent cause of action against the\ninsurer[;] it merely grants a procedural right of action against an insurer where\nthe plaintiff has a substantive cause of action against the insured.” Soileau v.\n 28\n\f Case: 17-10663 Document: 00514998485 Page: 29 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nSmith True Value & Rental, 144 So. 3d 771, 780 (La. 2013). As such, the\nReceiver could settle with the Underwriters notwithstanding the direct action\nclaim just as he could settle regardless of the Employee Appellants’ contractual\nclaims to policy proceeds. Further, as former investors in the Stanford entities,\nthe Retirees were afforded a means of filing claims apart from the direct action\nsuit, and many have availed themselves of that opportunity. Consequently,\nthe Retirees’ direct action suit against the Underwriters amounts to a\nredundant claim on receivership assets.\n Nevertheless, the Retirees assert several arguments that have no\nbearing on the permissibility of the settlement and bar order as to them. They\ncontend first that the settlement and bar order conflict with the Supreme\nCourt’s decision in Chadbourne & Parke LLP v. Troice, 134 S. Ct. 1058 (2014),\nwhich they characterize as “acknowledg[ing] the Louisiana Retirees’ rights to\nbring their state law securities claims in Louisiana state court.” But Troice\nheld only that the Securities Litigation Uniform Standards Act did not preempt\nthe Louisiana Appellants’ state court claims. The Court’s ruling did not bear\non the merits of or procedure for the Retirees’ state law case.\n Second, they contend that DSCC, 712 F.3d at 185, forbids giving the\nreceiver the right to “control the settlement of a claim it does not own.” That\nis certainly correct according to our previous discussion, but here, the Receiver\nhad standing to pursue its own claims as coinsured under the Underwriters’\npolicies, such claims perfected the Receiver’s interest in a valuable asset, and\nTexas law provided the right to settle them even at the expense of the Retirees’\ndirect action claims.\n The Retirees argue that the district court should have first determined\nthe disputed legal questions about the magnitude of, and legal rights to, the\npolicy proceeds before approving the settlement and bar orders under In re\nLouisiana World Exposition, Inc., 832 F.2d 1391 (5th Cir. 1987). This\n 29\n\f Case: 17-10663 Document: 00514998485 Page: 30 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nargument simply misreads that case. The court in Louisiana World explicitly\ndistinguished the facts before it from cases involving coinsureds with equal\nclaims to the policy proceeds. Moreover, at least one disputed policy – the\nFidelity Bond – covers only the Receivership entities. 21 It was not an abuse of\ndiscretion for the district court to hold that equity favored avoiding costly\nlitigation and dissipation of receivership assets by allowing the Receiver, a\ncoinsured with equal claim to the policy proceeds, to settle with the\nUnderwriters. Avoiding protracted legal examination of the policy exclusions,\nwhich could just as easily bar Retirees and others from the policy proceeds,\nwas precisely the point of the settlement.\n Fourth, Retirees assert that the Anti-Injunction Act, 28 U.S.C. § 2283\n(“AIA”), prevented the court from issuing its bar orders. This argument has no\nmerit. Under the AIA, “any injunction against state court proceedings\notherwise proper under general equitable principles must be based on one of\nthe specific statutory exceptions to [the Anti-Injunction Act] if it is to be\nupheld.” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281,\n287, 90 S. Ct. 1739, 1743 (1970). The specific exceptions are express\nauthorization by an Act of Congress, where necessary in aid of the court’s\njurisdiction, or to protect or effectuate the court’s judgments. Id. at 288,\n90 S. Ct. at 1743–44. The AIA does not prohibit the settlement and bar order\nbecause, pertinent to the Retirees, they cover only those claims implicating the\ninsurance policy proceeds and so were necessary in aid of the district court’s\njurisdiction over those proceeds. The district court has exclusive in rem\njurisdiction over the policy proceeds and permanent bar orders have been\napproved as parts of settlements to secure receivership assets. See, e.g., SEC\n\n\n 21 As with the other policies, the Underwriters and Receiver dispute the scope of\ncoverage and exclusions of the Fidelity Bond, and whether the Receiver may access the\nproceeds, but there is no argument that the Retirees may access these proceeds.\n 30\n\f Case: 17-10663 Document: 00514998485 Page: 31 Date Filed: 06/17/2019\n\n\n\n No. 17-10663\nv. Parish, No. 2:07-CV-00919-DCN, 2010 WL 8347143 (D.S.C. Feb. 10, 2010)\n(“[T]he bar order is necessary to preserve and aid this court’s jurisdiction over\nthe receivership estate, such that the Anti-Injunction Act would not prohibit\nthe bar order even if there were pending state court actions, which there are\nnot.”).\n For these reasons, the settlement and bar orders did not interfere with\nor improperly extinguish the Retirees’ rights.\n CONCLUSION\n For the foregoing reasons, we VACATE the district court’s orders\napproving the settlement and bar orders and REMAND for further\nproceedings consistent with this opinion. 22\n\n\n\n\n Vacatur and remand will probably necessitate the court’s reconsideration of the\n 22\n\nattorneys’ fee award to the Receiver’s counsel.\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff v. STANFORD INTERNATIONAL BANK, LIMITED, Defendant v. Joseph Becker; Terence Beven; Wanda Bevis; Thomas Eddie Bowden; Troy L. Lillie, Jr., Et Al, Movants-Appellants Doug McDaniel; Scott Notowich; Eddie Rollins; Cordell Haymon; Et Al, Objecting Parties-Appellants v. Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Interested Parties-Appellees Ralph S. Janvey, Appellee Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company, Plaintiffs-Appellees v. Ralph S. Janvey, in His Capacity as Court Appointed Receiver for Stanford International Bank Limited, Stanford Group Company, Stanford Capital Management L.L.C., Stanford Financial Group, and Stanford Financial Group Bldg, Defendant-Appellee v. Cordell Haymon, Intervenor-Appellant Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Plaintiffs-Appellees v. Cordell Haymon, Objecting Party-Appellant v. Ralph S. Janvey, Intervenor-Appellee Certain Underwriters at Lloyd's of London; Arch Specialty Insurance Company; Lexington Insurance Company, Plaintiffs-Appellees v. Ralph S. Janvey, Intervenor Defendant-Appellee v. Cordell Haymon, Objecting Party-Appellant Cordell Haymon, Third Party Plaintiff-Appellant v. Certain Underwriters of Lloyd's of London, Claims Asserted by Claude F. Reynaud, Jr. Third Party Defendant-Appellee v. Ralph S. Janvey, Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-10663 Document: 00514998485 Page: 1 Date Filed: 06/17/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-10663 FILED\\n June 17, 2019\\n Lyle W. Cayce\\nSECURITIES AND EXCHANGE COMMISSION Clerk\\n\\n Plaintiff\\n\\nv.\\n\\nSTANFORD INTERNATIONAL BANK, LIMITED\\n\\n Defendant\\n\\nv.\\n\\nJOSEPH BECKER; TERENCE BEVEN; WANDA BEVIS;\\nTHOMAS EDDIE BOWDEN; TROY L. LILLIE, JR., et al\\n\\n Movants - Appellants\\n\\nDOUG MCDANIEL; SCOTT NOTOWICH;\\nEDDIE ROLLINS; CORDELL HAYMON; et al,\\n\\n Objecting Parties - Appellants\\n\\nv.\\n\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\nARCH SPECIALTY INSURANCE COMPANY;\\nLEXINGTON INSURANCE COMPANY,\\n\\n Interested Parties - Appellees\\n\\nRALPH S. JANVEY,\\n\\n Appellee\\n***********************\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\n\\f Case: 17-10663 Document: 00514998485 Page: 2 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nARCH SPECIALTY INSURANCE COMPANY,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nRALPH S. JANVEY, In his Capacity as Court Appointed Receiver for\\nStanford International Bank Limited, Stanford Group Company, Stanford\\nCapital Managment L.L.C., Stanford Financial Group, and Stanford\\nFinancial Group Bldg,\\n\\n Defendant - Appellee\\n\\nv.\\n\\nCORDELL HAYMON,\\n\\n Intervenor - Appellant\\n*************************************\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\nARCH SPECIALTY INSURANCE COMPANY;\\nLEXINGTON INSURANCE COMPANY,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCORDELL HAYMON,\\n\\n Objecting Party - Appellant\\nv.\\n\\nRALPH S. JANVEY,\\n\\n Intervenor - Appellee\\n***************************************\\nCERTAIN UNDERWRITERS AT LLOYD’S OF LONDON;\\nARCH SPECIALTY INSURANCE COMPANY;\\nLEXINGTON INSURANCE COMPANY,\\n\\n Plaintiffs - Appellees\\nv.\\n\\n 2\\n\\f Case: 17-10663 Document: 00514998485 Page: 3 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n\\n\\nRALPH S. JANVEY,\\n\\n Intervenor Defendant - Appellee\\nv.\\n\\nCORDELL HAYMON,\\n\\n Objecting Party - Appellant\\n*********************************************\\n\\nCORDELL HAYMON,\\n\\n Third Party Plaintiff - Appellant\\nv.\\n\\nCERTAIN UNDERWRITERS OF LLOYD’S OF LONDON, Claims asserted\\nby Claude F. Reynaud, Jr.\\n\\n Third Party Defendant - Appellee\\nv.\\n\\nRALPH S. JANVEY,\\n\\n Appellee\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JONES, CLEMENT, and SOUTHWICK, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n These appeals challenge the district court’s approval of a global\\nsettlement between Ralph Janvey, the Receiver for Stanford International\\nBank and related entities, and various insurance company Underwriters, who\\nissued policies providing coverage for fidelity breaches, professional indemnity,\\ndirectors and officers protection, and excess losses. The settlement yielded $65\\n\\n 3\\n\\f Case: 17-10663 Document: 00514998485 Page: 4 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nmillion for the Receiver’s claims against the insurance policy proceeds, but it\\nwipes out, through “bar orders,” claims by coinsureds to the policy proceeds\\nand their extracontractual claims against the Underwriters even if such claims\\nwould not reduce or affect the policies’ coverage limits. Among the parties\\nwhose claims were barred are Appellants comprising (a) two groups of former\\nStanford managers and employees; (b) Cordell Haymon, a Stanford entity\\ndirector who settled with the Receiver for $2 million; and (c) a group of\\nLouisiana retiree-investors.\\n A constellation of issues surrounding the global settlement is\\nencapsulated in the question whether the district court abused its discretion\\nin approving the settlement and bar orders. Based on the nature of in rem\\njurisdiction and the limitations on the court’s and Receiver’s equitable power,\\nwe conclude the district court lacked authority to approve the Receiver’s\\nsettlement to the extent it (a) nullified the coinsureds’ claims to the policy\\nproceeds without an alternative compensation scheme; (b) released claims the\\nEstate did not possess; and (c) barred suits that could not result in judgments\\nagainst proceeds of the Underwriters’ policies or other receivership assets.\\nAccordingly, we VACATE the district court’s order approving the settlement\\nand bar orders and REMAND for further proceedings consistent with this\\nopinion.\\n BACKGROUND\\n The massive Stanford Financial Ponzi scheme defrauded more than\\n18,000 investors who collectively lost over $5 billion. As part of a securities\\nfraud lawsuit brought by the SEC, the district court appointed the Receiver “to\\nimmediately take and have complete and exclusive control” of the receivership\\nestate and “any assets traceable” to it. The court granted the Receiver “the full\\npower of an equity receiver under common law,” including the right to assert\\nclaims against third parties and “persons or entities who received assets or\\n 4\\n\\f Case: 17-10663 Document: 00514998485 Page: 5 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nrecords traceable to the Receivership Estate.” SEC v. Stanford Int’l Bank, Ltd.,\\n776 F. Supp. 2d 323, 326 (N.D. Tex. 2011). The district court also held that the\\ncourt possessed exclusive jurisdiction over a group of insurance policies and\\ntheir proceeds, at issue in this case, and ruled that, other than a lawsuit\\ninvolving the Stanford criminal defendants, “[n]o persons or entities may bring\\nfurther claims related to the [Proceeds] in any forum other than” the district\\ncourt. Neither of these latter two orders was timely appealed.\\n The policies issued to the Stanford entities covered, in different\\narrangements, losses and defense costs for the entities and their officers,\\ndirectors and certain employees. At issue are the following policies: a\\nDirectors’ and Officers’ Liability and Company Indemnity Policy (“D&O”); a\\nFinancial Institutions Crime and Professional Indemnity Policy, including\\n(a) first-party fidelity coverage for employee theft (“Fidelity Bond”) and “[l]oss\\nresulting directly from dishonest, malicious or fraudulent acts committed by\\nan Employee,” and (b) third-party coverage for professional indemnity (“PI\\nPolicy”); and an Excess Blended “Wrap” Policy (“Excess Policy”). The policy\\nlimits are as follows:\\n\\n\\n Stanford Bank Entities Stanford Brokerage Entities\\nD&O Policy $5 million $5 million\\nPI Policy $5 million per Claim $5 million per Claim\\n $10 million aggregate $10 million aggregate\\nFidelity $5 million per Loss $5 million per Loss\\nBond $10 million aggregate $10 million aggregate\\nExcess $45 million each Claim or Loss/$90 million aggregate\\nPolicy\\n\\n\\n\\n\\n 5\\n\\f Case: 17-10663 Document: 00514998485 Page: 6 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n The maximum amount of remaining coverage is disputed. According to\\nthe district court, the Underwriters have paid some $30 million in claims under\\nthe policies for insureds’ defense costs. Underwriters contend that only $46\\nmillion remains available because the losses resulted from a single event – the\\nPonzi scheme. The Receiver argues that the conduct implicates the aggregate\\nloss limits up to $101 million of remaining coverage. The questions of coverage\\nultimately depend on the identity of the insureds under each policy and the\\nnature of the claims, and these issues are hotly contested. The Stanford\\ncorporate entities are insured under all of the policies, but Stanford directors,\\nofficers, and employees are coinsureds only under the D&O, PI, and Excess\\npolicies. 1 Each policy is subject to multiple definitions and exclusions. After\\nthe Receiver made numerous claims for coverage under the policies (the “Direct\\nClaims”) that were met with Underwriters’ denial based on policy exclusions,\\nseveral lawsuits ensued.\\n The Receiver also pursued the policy proceeds indirectly by filing\\nlawsuits (the “Indirect Claims”) against hundreds of former Stanford directors,\\nofficers, and employees, alleging fraudulent transfers and unjust enrichment\\nand/or breach of fiduciary duty. The Receiver obtained a $2 billion judgment\\nagainst one former Stanford International Bank director and a $57 million\\njudgment against a former Bank treasurer, both of whom were potentially\\ncovered under the policies. The Receiver continues to litigate similar claims\\nagainst the coinsured Appellants who were Stanford managers and employees.\\nSee, e.g., Stanford International Bank, Ltd., et al., v. James R. Alguire, et al.,\\nNo. 3:09-CV-0724-N (N.D. Tex., filed Dec. 18, 2019).\\n\\n\\n\\n\\n 1 There is no dispute that the Appellants here are coinsured under the noted policies,\\nbut not coinsured under the Fidelity bond. The chief dispute is about the effect of certain\\nlimitations and exclusions within the policies.\\n 6\\n\\f Case: 17-10663 Document: 00514998485 Page: 7 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n After eight years of sparring, the Receiver and Underwriters, together\\nwith the court-appointed Examiner on behalf of Stanford investors, mediated\\ntheir disputes for several months in 2015. Mediation initially resulted in a\\nSettlement Proposal under which the Underwriters agreed to pay the Receiver\\n$65 million, and in return the Receiver would “fully release any and all\\ninsureds under the relevant policies.” The purpose of the complete release was\\nto shield the Underwriters from any policy obligations to defend or indemnify\\nformer Stanford personnel, including the employee Appellants, in the\\nReceiver’s Indirect Claim lawsuits. The parties almost immediately disagreed\\nabout the content of the settlement, however, and the Underwriters filed an\\nExpedited Motion to Enforce the Settlement Agreement. The district court\\ndenied the motion and instructed the parties to continue negotiating. On\\nJune 27, 2016, the Receiver and Underwriters notified the court that they had\\nentered into a new settlement agreement, which the Examiner supported.\\n Under this new settlement, the Underwriters again agreed to pay $65\\nmillion into the receivership estate, but the settlement required orders barring\\nall actions against Underwriters relating to the policies or the Stanford\\nEntities. Paragraph 35 of the settlement provides Underwriters the\\nunqualified right to withdraw from the settlement if the court refuses to issue\\nthe bar orders. The bar orders were necessary because, unlike the terms of the\\nfirst proposed settlement, the Receiver is required to release only the Estate’s\\nclaims against 16 directors and officers (rather than all insureds), as well as\\nthe judgments already obtained against certain directors and officers. 2 All\\nother former Stanford employees, officers and directors, including Appellants,\\n\\n\\n\\n 2 Oddly, the settlement releases claims only against those directors and officers who\\nwere among the most culpable for the Ponzi scheme. And it releases Underwriters from any\\nobligation in connection with the aforementioned judgments for $2 billion and $57 million.\\nThis oddity should have been considered when assessing the fairness of the settlement.\\n 7\\n\\f Case: 17-10663 Document: 00514998485 Page: 8 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nremain subject to ongoing or potential litigation by the Receiver once the\\nlitigation stay against them is lifted. Some Appellants assert that their\\nindividual costs of defending the Receiver’s ongoing actions already exceed\\n$10,000. But the bar orders prevent them from suing the Underwriters for\\ntheir costs of defense and indemnity under the insurance policies, even though\\nthey are coinsured, or for extra-contractual or statutory claims.\\n The Receiver moved for approval of the settlement and entry of the bar\\norders. The district court directed notice to all interested parties, and received\\nobjections from several third parties, including Appellants. The court heard\\narguments of counsel regarding the settlement, but it refused to allow parties\\nto offer evidence or live testimony or engage in cross-examination. After the\\nhearing, parties were permitted to file additional declarations or affidavits.\\n The district court approved the settlement and bar orders, denied all\\nobjections, and approved the payment of $14 million of attorney fees to\\nReceiver’s counsel. Separate Final Judgments and Bar Orders were entered\\nin each action pending before it relating to the Stanford Entities and in\\nAppellant Haymon’s and Appellant Alvarado’s separate lawsuits against the\\nUnderwriters. The district court rejected all post-trial motions.\\n A more complete discussion of the court’s findings will follow, but in\\ngeneral, the court found that the settlement resulted from “vigorous, good\\nfaith, arm’s-length, mediated negotiations” and concluded that the settlement\\nwas “in all respects, fair, reasonable, and adequate, and in the best interests\\nof all Persons claiming an interest in, having authority over, or asserting a\\nclaim against Underwriters, Underwriters’ Insureds, the Stanford Entities,\\nthe Receiver, or the Receivership Estate.” The court further found that the\\nsettlement and bar orders were “fair, just, and equitable,” and it rejected the\\nAppellants’ due process claims based on their exclusion from settlement talks\\nand the lack of an evidentiary hearing. While the court recognized that the\\n 8\\n\\f Case: 17-10663 Document: 00514998485 Page: 9 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nbar orders discriminate between a few Stanford officers and the Appellants, it\\nreasoned that “on balance the unfairness alleged by the Objectors is either\\nmitigated by other circumstances or simply outweighed by the benefit of the\\nsettlement in terms of fairness, equity, reasonableness, and the best interests\\nof the receivership.”\\n The Appellants fall into three categories. The McDaniel Appellants and\\n“Alvarado” 3 Appellants are former Stanford managers or employees from\\noffices around the country (“Employees”) who seek contractual coverage under\\nthe insurance policies and press extra-contractual claims against the\\nUnderwriters, including for bad faith and statutory violations of the Texas\\nInsurance Code. Appellant Cordell Haymon (“Haymon”) was a member of\\nStanford Trust Company’s Board of Directors who settled the Receiver’s claims\\nagainst him for $2 million before the instant global settlement was reached,\\nand in return received the express right to pursue Underwriters for policy\\ncoverage and extra-contractual claims. Finally, the Louisiana Retirees/Becker\\nAppellants (“Retirees”) are former Stanford investors who sued Stanford\\nbrokers covered by the insurance policies and seek to recover from the\\nUnderwriters directly pursuant to the Louisiana Direct Action Statute, La.\\nRev. Stat. 22:1269.\\n Each group of Appellants raises different challenges to the court’s\\napproval of the settlement and bar orders. They appeal from the district court’s\\norder denying their objections to the proposed settlement, the Final Bar Order,\\n\\n\\n\\n\\n 3 While Alvarado was originally a party to this appeal, he withdrew his individual\\nappeal on April 19, 2018. The other employees to that action remain as appellants and will\\nbe denominated, for the sake of convenience, Alvarado Appellants.\\n\\n 9\\n\\f Case: 17-10663 Document: 00514998485 Page: 10 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nand the Order Approving Attorneys’ Fees 4 for the Receiver’s counsel. The\\nStanford Employees additionally appeal the Order denying their new trial\\nmotion, and Haymon appeals from the Order denying his motion for\\nreconsideration. After explaining the principles that govern the court’s\\nmanagement of the Receivership, we will analyze each set of Appellants’\\nobjections.\\n STANDARD OF REVIEW\\n A district court’s entry of a bar order, like other actions in supervising\\nan equity receivership, is reviewed for abuse of discretion. SEC v. Safety Fin.\\nServ., Inc., 674 F.2d 368, 373 (5th Cir. 1982); Newby v. Enron Corp., 542 F.3d\\n463, 468 (5th Cir. 2008). A district court’s determination of the fairness of a\\nsettlement in an equity receivership proceeding is reviewed for an abuse of\\ndiscretion. Sterling v. Stewart, 158 F.3d 1199, 1202 (11th Cir. 1998)\\n(“Determining the fairness of the settlement [in an equity receivership] is left\\nto the sound discretion of the trial court and we will not overturn the court’s\\ndecision absent a clear showing of abuse of that discretion.”). There is no abuse\\nof discretion where factual findings are not clearly erroneous and rulings are\\nwithout legal error. Marlin v. Moody Nat. Bank, N.A., 533 F.3d 374, 377 (5th\\nCir. 2008). A district court’s denial of a Rule 59 motion for a new trial or to\\nalter or amend a judgment also is reviewed for an abuse of discretion. St. Paul\\nMercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997). This\\nCourt reviews de novo a district court’s application of exceptions to the Anti–\\nInjunction Act as a question of law. Moore v. State Farm Fire & Cas. Co.,\\n556 F.3d 264, 269 (5th Cir. 2009).\\n\\n\\n\\n\\n 4The amount and propriety of the Receiver’s very high fee request is not substantively\\nbriefed by any party and is therefore waived, except to the extent that on remand the fee\\nought to be reconsidered in light of this opinion.\\n 10\\n\\f Case: 17-10663 Document: 00514998485 Page: 11 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n DISCUSSION\\n I. General Receivership Principles\\n A district court has broad authority to place assets into receivership “to\\npreserve and protect the property pending its final disposition.” Gordon v.\\nWashington, 295 U.S. 30, 37, 55 S. Ct. 584 (1935); see also Gilchrist v. Gen.\\nElec. Capital Corp., 262 F.3d 295, 302 (4th Cir. 2001) (“the district court has\\nwithin its equity power the authority to appoint receivers and to administer\\nreceiverships”) (citing Fed. R. Civ. P. 66). The primary purpose of the equitable\\nreceivership is the marshaling of the estate’s assets for the benefit of aggrieved\\ninvestors and other creditors of the receivership entities. See SEC v. Hardy,\\n803 F.2d 1034, 1038 (9th Cir. 1986). Receivers appointed by a federal court are\\ndirected to “manage and operate” the receivership estate “according to the\\nrequirements of the valid laws of the State in which such property is situated,\\nin the same manner that the owner or possessor thereof would be bound to do\\nif in possession thereof.” 28 U.S.C. § 959(b).\\n In general, the Receiver has wide powers to acquire, organize and\\ndistribute the property of the receivership. A properly appointed receiver is\\n“vested with complete jurisdiction and control of all [receivership] property\\nwith the right to take possession thereof.” 28 U.S.C. § 754. The Receiver is\\nobliged to allocate receivership assets among the competing claimants\\naccording to their respective rights and, in this case, under the laws of Texas,\\nwhere the Stanford Financial Group was headquartered. The district court\\nruled, in a 2009 order that was not appealed, that the insurance policies and\\nproceeds are property of the estate subject to the court’s exclusive in rem\\njurisdiction.\\n Once assets have been placed in receivership, “[i]t is a recognized\\nprinciple of law that the district court has broad powers and wide discretion to\\ndetermine the appropriate relief in an equity receivership.” Safety Fin.,\\n 11\\n\\f Case: 17-10663 Document: 00514998485 Page: 12 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n674 F.2d at 372–73 (citing SEC v. Lincoln Thrift Assoc., 577 F.2d 600, 606 (9th\\nCir. 1978)). This discretion derives not only from the statutory grant of power,\\nbut also the court’s equitable power to fashion appropriate remedies as\\n“ancillary relief” measures. See SEC v. Wencke, 622 F.2d 1363, 1369 (9th Cir.\\n1980). Courts have accordingly exercised their discretion to issue bar orders\\nto prevent parties from initiating or continuing lawsuits that would dissipate\\nreceivership assets or otherwise interfere with the collection and distribution\\nof the assets. See SEC v. Stanford Int’l Bank Ltd., 424 F. App’x 338, 340 (5th\\nCir. 2011) (“It is axiomatic that a district court has broad authority to issue\\nblanket stays of litigation to preserve the property placed in receivership\\npursuant to SEC actions.”). Receivership courts, like bankruptcy courts, may\\nalso exercise discretion to approve settlements of disputed claims to\\nreceivership assets, provided that the settlements are “fair and equitable and\\nin the best interests of the estate.” Ritchie Capital Mgmt., L.L.C. v. Kelley,\\n785 F.3d 273, 278 (8th Cir. 2015) (citing Tri–State Fin., LLC v. Lovald,\\n525 F.3d 649, 654 (8th Cir. 2008)).\\n Neither a receiver’s nor a receivership court’s power is unlimited,\\nhowever. See Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S. Ct. 1858, 1878\\n(1971) (“The remedial powers of an equity court must be adequate to the task,\\nbut they are not unlimited.”). Courts often look to the related context of\\nbankruptcy when deciding cases involving receivership estates. The district\\ncourt here acknowledged that the purpose of bankruptcy receiverships and\\nequity receiverships is “essentially the same—to marshal assets, preserve\\nvalue, equally distribute to creditors, and, either reorganize, if possible, or\\norderly liquidate.” Janvey v. Alquire, No. 3:09-cv-0724, 2014 WL 12654910, at\\n*17 (N.D. Tex. July 30, 2014); see also SEC v. Wealth Mgmt. LLC, 628 F.3d\\n323, 334 (7th Cir. 2010) (“The goal in both securities-fraud receiverships and\\nliquidation bankruptcy is identical—the fair distribution of the liquidated\\n 12\\n\\f Case: 17-10663 Document: 00514998485 Page: 13 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nassets”). That their purpose is the same “makes sense” and reflects their\\nshared legal heritage, since “federal equity receiverships were the predecessor\\nto Chapter 7 liquidations and Chapter 11 reorganizations.” Alquire, 2014 WL\\n12654910, at *17 (citing Duparquet Huot & Moneuse Co. v. Evans, 297 U.S.\\n216, 221, 56 S. Ct. 412, 414 (1936)). The district court also recognized that “[i]n\\nthis particular case, the purpose and objectives of the receivership, as\\ndelineated in the Receivership Order, closely reflect the general purpose\\nshared by the Bankruptcy Code and federal equity receiverships,” and it\\nconcluded that “[u]ltimately, this particular receivership is the essential\\nequivalent of a Chapter 7 bankruptcy.” Id. at *18.\\n Unfortunately, two interrelated limitations on the Stanford receivership\\nwere downplayed by the district court in its approval of the settlement and bar\\norders. Both derive from the broader principle that the receiver collects and\\ndistributes only assets of the entity in receivership. The first applies to the\\nReceiver’s standing: “[l]ike a trustee in bankruptcy or for that matter the\\nplaintiff in a derivative suit, an equity receiver may sue only to redress injuries\\nto the entity in receivership, corresponding to the debtor in bankruptcy and the\\ncorporation of which the plaintiffs are shareholders in the derivative suit.”\\nScholes v. Lehmann, 56 F.3d 750, 753 (7th Cir. 1995) (emphasis added) (citing,\\ninter alia, Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S. Ct.\\n1678 (1972)). The Scholes case involved an SEC receivership, but Caplin, on\\nwhich it relied, was a Supreme Court decision in a Chapter X reorganization\\ncase. This court endorsed the Scholes limitation as applied to this receivership\\nin Janvey v. Democratic Senatorial Campaign Comm., Inc. (“DSCC”), 712 F.3d\\n185, 190–93 (5th Cir. 2013). And following Caplin, a sister circuit held, “a\\ntrustee, who lacks standing to assert the claims of creditors, equally lacks\\nstanding to settle them.” DSQ Prop. Co., Ltd. v. DeLorean, 891 F.2d 128, 131\\n(6th Cir. 1989); see also Wuliger v. Mfr’s. Life Ins. Co., 567 F.3d 787, 794 (6th\\n 13\\n\\f Case: 17-10663 Document: 00514998485 Page: 14 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nCir. 2009) (“Because the receivership entities all would have lacked standing,\\nand because of the rule that receivers’ rights are limited to those of the\\nreceivership entities, the Receiver also lacked standing [to sue for\\nmisrepresentations by brokers to defrauded investors].”).\\n The second limitation, arising from the district court’s in rem\\njurisdiction, is that the court may not exercise unbridled authority over assets\\nbelonging to third parties to which the receivership estate has no claim. Put\\nanother way, in the course of administering this receivership, this district court\\npreviously rejected a broad reading of 28 U.S.C. § 754 that suggested the\\ncourt’s in rem jurisdiction over the property would necessarily reach every\\nclaim relating to that property. See Rishmague v. Winter, No. 3:11-cv-2024-N,\\n2014 WL 11633690, at *2 (N.D. Tex. Sept. 9, 2014).\\n Thus, this court and others have held that a bankruptcy court may not\\nauthorize a debtor to enter into a settlement with liability insurers that enjoins\\nindependent third-party claims against the insurers. See, e.g., Matter of Zale\\nCorp., 62 F.3d 746 (5th Cir. 1995) (refusing to countenance a bankruptcy\\ncourt’s authority to enforce a settlement prohibiting third-party bad faith\\ninsurance claims because the claims were not property of the bankruptcy\\nestate). Similarly, “if [the coinsureds’] portion of the [insurance] Proceeds is\\ntruly not property of the Estate, then the bankruptcy court has no authority to\\nenjoin suits against the [coinsureds].” In re Vitek, 51 F.3d 530, 536 (5th Cir.\\n1995); see also In re SportStuff, Inc., 430 B.R. 170, 175 (B.A.P. 8th Cir. 2010)\\n(bankruptcy court lacked jurisdiction or authority to impair or extinguish\\nindependent contractual rights of vendors that were additional insureds under\\nthe debtor’s policies). As these cases illustrate, bankruptcy courts lack\\n“jurisdiction” to enjoin such claims.\\n The prohibition on enjoining unrelated, third-party claims without the\\nthird parties’ consent does not depend on the Bankruptcy Code, but is a maxim\\n 14\\n\\f Case: 17-10663 Document: 00514998485 Page: 15 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nof law not abrogated by the district court’s equitable power to fashion ancillary\\nrelief measures. Contrary to the Receiver’s assertion, the fact that the\\nbankruptcy statute, 28 U.S.C. § 1334(b), limits jurisdiction to proceedings\\n“arising in or related to” bankruptcy cases does not diminish the application of\\nZale or Vitek to equity receiverships. As noted, bankruptcy and equity\\nreceiverships share common legal roots. 5 See In re Davis, 730 F.2d 176, 183–\\n84 (5th Cir. 1984) (the Bankruptcy Code arms bankruptcy courts with broad\\npowers analogous to a court in equity). Moreover, to justify its decision denying\\nbankruptcy court jurisdiction over third-party claims, the court in Zale quoted\\nthe Supreme Court in a civil rights class action case: “[o]f course, parties who\\nchoose to resolve litigation through settlement may not dispose of the claims\\nof a third party, and a fortiori may not impose duties or obligations on a third\\nparty, without that party’s agreement. A court’s approval of a consent decree\\nbetween some of the parties therefore cannot dispose of the valid claims of\\nnonconsenting intervenors . . . .” Zale, 62 F.3d at 757 n.26 (citing Local No. 93\\nv. City of Cleveland, 478 U.S. 501, 529, 106 S. Ct. 3063, 3079, (1986)). 6 All of\\n\\n\\n\\n 5 Modern bankruptcy reorganization law originated with Section 77B of the\\nBankruptcy Act of 1934, the purpose of which was to codify best practices in what had\\nformerly been known as equity receiverships. See Duparquet Huot & Moneuse Co. v. Evans,\\n297 U.S. 216, 222–24, 56 S. Ct. 412, 415–17 (1936). Section 77B(a), in turn, stated that the\\nbankruptcy court’s powers are those “which a Federal court would have had it appointed a\\nreceiver in equity of the property of the debtor . . . .” Id. at 221, 56 S. Ct. at 415.\\n\\n 6 Local No. 93 is merely one example of the Supreme Court’s rejection of the use of\\nconsent decrees to extinguish the claims of non-consenting third-parties, for “[a] voluntary\\nsettlement in the form of a consent decree between one [party] and [another party] cannot\\npossibly ‘settle,’ voluntarily or otherwise, the conflicting claims of another group of [parties]\\nwho do not join in the agreement. This is true even if the second group of [parties] is a party\\nto the litigation.” Martin v. Wilks, 490 U.S. 755, 755–68, 109 S. Ct. 2180, 2181–88 (1989).\\nIndeed, “[a]ll agree” that “[i]t is a principle of general application in Anglo-American\\njurisprudence that one is not bound by a judgment in personam in a litigation in which he is\\nnot designated as a party or to which he has not been made a party by service of process.” Id.\\n(citing Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 117 (1940)).\\n\\n 15\\n\\f Case: 17-10663 Document: 00514998485 Page: 16 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nthis makes clear that it is not the subject matter or statutory limitations\\ndriving this limitation, and federal district courts have no greater authority in\\nequity receiverships to ignore these bedrock propositions, because a “court in\\nequity may not do that which the law forbids.” United States v. Coastal Ref. &\\nMktg., Inc., 911 F.2d 1036, 1043 (5th Cir. 1990).\\n Rather than reckon with the limits on the Receiver’s standing and the\\ncourt’s equitable power, the district court here cited an unpublished Fifth\\nCircuit case, SEC v. Kaleta, No. 4:09-cv-3674, 2012 WL 401069, at *4 (S.D. Tex.\\nFeb. 7, 2012), aff’d., 530 F. App’x. 360 (5th Cir. 2013), to support both the\\nsettlement and bar orders. Importantly, Kaleta is an unpublished, non-\\nprecedential decision of this court. Not only that, but reading it as the district\\ncourt and Appellees here advocate would mean investing the Receiver with\\nunbridled discretion to terminate the third-party claims against a settling\\nparty that are unconnected to the res establishing jurisdiction. That is\\nunprecedented. But Kaleta is in any event distinguishable and not\\ninconsistent with the above-stated principles. In Kaleta, the bar order\\nprevented defrauded investors from suing parties closely affiliated with the\\nentity in receivership after the parties had agreed to make good on their\\nguarantees to the receiver. Moreover, the settling parties would have been\\ncodefendants with receivership entities, leading to the possibility of their\\nasserting indemnity or contribution from the estate. The court was forestalling\\na race to judgment that would have diminished the recovery of all creditors\\nagainst receivership assets. That bar order protected the assets of the\\nreceivership estate, whereas the bar orders before us extend beyond\\nreceivership assets.\\n The Receiver also contends that the district court may permanently\\nenjoin the claims of non-consenting third parties based on general statements\\nabout ancillary powers found in SEC cases such as Wencke and Safety\\n 16\\n\\f Case: 17-10663 Document: 00514998485 Page: 17 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nFinancial Services. We disagree. These cases stand only for the proposition\\nthat, in some circumstances, federal courts may use injunctive measures, such\\nas stays, “where necessary to protect the federal receivership.” See Wencke,\\n622 F.2d at 1370; Safety Fin. Serv., 674 F.2d at 372 n.5 (distinguishing Wencke,\\nwhich “involved the much broader question of a federal court’s power to enjoin\\nnonparty state actions against receivership assets.”) (emphasis added). In fact,\\nthe court in Wencke recognized that its holding was limited to the propriety of\\nstaying third-party “proceedings against a court-imposed receivership.”\\nWencke, 622 F.2d at 1371 (emphasis added). Correctly read, these cases\\nexplain that in rem jurisdiction over the receivership estate imbues the district\\ncourt with broad discretion to shape equitable remedies necessary to protect\\nthe estate. 7 They do not support that a district court’s in rem jurisdiction over\\nthe estate may serve as a basis to permanently bar and extinguish\\nindependent, non-derivative third-party claims that do not affect the res of the\\nreceivership estate.\\n The Appellees emphasize the recent decision SEC v. DeYoung, 850 F.3d\\n1172 (10th Cir. 2017), as supporting their argument that an equity court’s\\npermanent bar order against third parties is appropriate when tied to a\\nsettlement that secures receivership assets. Like many of their arguments,\\nhowever, this assertion proves too much. DeYoung is a narrow and deliberately\\nfact-specific opinion. See DeYoung, 850 F.3d at 1182–83. The court approved\\na bar order preventing three defrauded IRA Account holders (out of over 5,500\\nvictims) from pursuing claims against the depository bank in which the\\naccounts had been illegally commingled. Notably, however, the court\\ndemonstrated that (1) the claims of the barred investors precisely mirrored\\n\\n\\n 7 See also SEC v. Stanford Int’l Bank, Ltd., 424 F. App’x. 338, 340 (5th Cir. 2011) (“It\\nis axiomatic that a district court has broad authority to issue blanket stays of litigation to\\npreserve the property placed in receivership pursuant to SEC actions.”) (emphasis added).\\n 17\\n\\f Case: 17-10663 Document: 00514998485 Page: 18 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nclaims that had been asserted and settled by the receiver; (2) averted a\\nduplicative lawsuit whereby the bank could have asserted its contract right to\\nindemnity from the receivership assets; and (3) provided the account holders\\nwith a claim against the receivership estate. The court simply channeled\\nredundant claims into the receivership while preventing diminution of\\nreceivership assets.\\n Returning to the broad issue in this case, whether the district court\\nabused its discretion in approving the settlement and bar orders, there are two\\nsubparts to the question. The first is whether the district court’s equitable\\npower to fashion ancillary relief could be used to bar claims by insureds to\\nproceeds of the Underwriters’ policies, which are property within the\\nreceivership estate. The second is whether the court’s equitable power may be\\nused to bar third-party claims, like tort or statutory claims, against the\\nUnderwriters but unconnected to the property of the Receivership. The\\nanswers to these questions vary according to the Appellants’ claims. Texas\\nlaw, unless otherwise noted, applies by virtue of 28 U.S.C. § 959(b).\\nII. Party Contentions\\n a. Appellants Alvarado and McDaniel\\n The McDaniel and Alvarado Appellants are all former Stanford\\nmanagers or employees who are being sued by the Receiver for clawbacks of\\ntheir compensation via the Receiver’s Indirect Claims on the Underwriters’\\npolicies. Appellants seek coverage under the insurance policies, which\\nUnderwriters have denied, to defend against these lawsuits and indemnify\\ntheir losses. Appellants object to the settlement and bar orders on numerous\\ngrounds. From a practical standpoint, the settlement will exhaust the\\nUnderwriters’ policy proceeds, leaving these Appellants wholly uninsured\\nagainst the Receiver’s lawsuits. The bar orders, moreover, prevent them from\\npursuing against the Underwriters not only breach of contract claims for\\n 18\\n\\f Case: 17-10663 Document: 00514998485 Page: 19 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nviolating the duties to defend and indemnify, but also statutory and tort claims\\nthat, if successful, would not be paid from policy proceeds and would not reduce\\nReceivership assets.\\n The district court’s rejection of Appellants’ objections rested generally on\\nits conclusion that the settlement and bar orders are fair, equitable, reasonable\\nand in the best interests of the receivership estate. As has been noted, the\\ncourt cited only the Kaleta case, affirmed by a non-precedential decision of this\\ncourt, in support of its conclusions. The court’s reasoning invoked the\\nperceived necessity of a settlement, together with the bar orders, to resolve\\nfairly and efficiently the competing claims of the Receiver and Underwriters\\nabout policy coverage and assure the maximum recovery for Stanford’s\\ndefrauded investors. Without the bar orders, the court stated, Underwriters\\nwould not settle. The court pointedly refused to decide whether policy\\nexclusions apply to the Appellants’ coverage claims. Even if such exclusions\\nbarred coverage, the court added, then the Receiver might also be barred by\\nthe same exclusions and all potential benefit of the settlement would be lost.\\nIn sum, the Appellants would lose out no matter what: their claims could be\\nbarred by exclusions, held uninsurable, or the Receiver, having the right to\\nsettle, would exhaust the proceeds first. 8 The balance of benefits to the\\nreceivership estate against Appellants’ admitted losses weighed in favor of the\\ncourt’s approving the settlement and bar orders.\\n\\n\\n\\n 8 Implicit in the district court’s reference to the Receiver’s right to settle and exhaust\\nall the policy proceeds is apparently its reliance on Texas law, which allows an insurer to\\nsettle with fewer than all of its co-insureds when the policy proceeds are insufficient to satisfy\\nall of the claims. See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex.\\n1929); Pride Transp. v. Cont’l Cas. Co., 511 F. App’x 347, 351 (5th Cir. 2013); Travelers\\nIndem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 765–68 (5th Cir. 1999); see also Tex.\\nFarmers Ins. Co. v. Soriano, 881 S.W.2d 312, 315 (Tex. 1994). The court, however, never\\nreferenced these cases.\\n\\n 19\\n\\f Case: 17-10663 Document: 00514998485 Page: 20 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n In the course of explaining its decision, however, the court made some\\nerrors. First, its broad statement that the settlement would fail without the\\nbar orders did not account for the fact that the parties had mediated a prior\\nsettlement that required no bar orders against these Appellants because the\\nReceiver had agreed to release all of its claims against them. “Global peace”\\nthere was achieved not by bar orders, but by the Receiver’s agreeing to drop\\nthe Indirect Claim suits. The final settlement required the broad bar orders\\nonly because the Receiver, for whatever reason, insisted that it must continue\\nto pursue hundreds of clawback actions. 9 The court’s broad statement also\\nneglected to note that, despite the Receiver’s overall insistence to the contrary,\\nthe Receiver nonetheless released its claims against sixteen former Stanford\\nofficers and employees in the final settlement.\\n Second, the court, perhaps inadvertently, did not address the fact that\\nAppellants were foreclosed from sharing in the assets recovered by the\\nReceiver by filing claims against the estate.\\n Third, the court failed to distinguish between the Appellants’ two\\nseparate types of claims – contractual claims for defense and indemnity\\npayable (if successful) from policy proceeds in competition with investors’\\nclaims to the Receivership assets; and independent, non-derivative, third-\\nparty claims for tort and statutory violations, which would be satisfied (if\\nsuccessful) out of Underwriters’ assets. In this connection, the court also\\nundervalued the Appellants’ claims for indemnity by disregarding Pendergest-\\nHolt. In that case, this court held that the D&O policies should provide up-\\nfront reimbursement of defense costs in Stanford insureds’ criminal cases\\n\\n\\n\\n 9 Indeed, when the Underwriters moved the district court to enforce the terms of the\\nmediated settlement, their motion queried the benefits to be reaped, other than in the\\nReceiver’s legal fees, from these time-consuming suits against relatively poor former\\nemployees targeted by the Receiver.\\n 20\\n\\f Case: 17-10663 Document: 00514998485 Page: 21 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\npending a separate judicial proceeding to resolve the coverage question.\\nPendergest-Holt v. Certain Und. at Lloyd’s of London, 600 F.3d 562, 572–74\\n(5th Cir. 2010). Although carefully hedged, this decision offered Appellants\\nthe prospect of possible, temporary relief for their mounting defense costs and\\nwas not “wholly inapplicable” to the decision concerning the settlement and\\nbar orders. But in any event, the court did not analyze the ramifications of\\nAppellants’ distinct claims against Receivership assets and claims wholly\\nindependent of receivership assets.\\n i. Contractual Claims for Defense and Indemnity\\n Reviewing first the settlement and bar of Appellants’ contractual claims\\nagainst the policy proceeds that are property of the receivership estate, we find\\nthat the court abused its discretion by extinguishing Appellants’ claims to the\\npolicy proceeds, while making no provision for them to access the proceeds\\nthrough the Receiver’s claims process. This undermines the fairness of the\\nsettlement.\\n As the district court observed, some settlement with the Underwriters\\nwas prudent because of the sheer magnitude of claims far beyond the policies’\\ncoverage, and because the scope of coverage, dependent on multiple, insured-\\nspecific factual and legal questions, is unclear. What is clear in Texas law, as\\nconceded by Appellants, is that an insurer may settle with fewer than all of its\\nco-insureds when the policy proceeds are insufficient to satisfy all of the claims.\\nSee G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex.\\n1929); Pride Transp. v. Continental Cas. Co., 511 F. App’x 347, 351 (5th Circuit\\n2013); Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 765–68\\n(5th Cir. 1999); see also Farmers Insurance Co. v. Soriano, 881 S.W.2d 312, 315\\n\\n\\n\\n\\n 21\\n\\f Case: 17-10663 Document: 00514998485 Page: 22 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n(Tex. 1994). 10 Although the district court did not cite these cases, its ruling\\nsquares with them and supports its cost/benefit calculation for the\\nReceiver/Underwriters’ settlement to the detriment of Appellants’ contractual\\nclaims.\\n But not only did the settlement expressly foreclose the Appellants from\\nsharing in the insurance policy proceeds of which they are coinsureds, the\\nAppellants are not even allowed to file claims against the Receivership estate.\\nUnlike the Stanford investors and the Receiver’s attorneys, who can pursue\\nrestitution through the Receiver’s claims process, Appellants have no access to\\nthe claims process. The Settlement Agreement specifically restricts payment\\nof the Proceeds to the Receivers’ attorneys and the Stanford investors and\\nspecifically excludes Stanford employees and management, including\\nAppellants. For these Appellants, should the Receiver continue to pursue\\nthem, their claims against the Underwriters offer the only avenue of recovery.\\nThis alone serves to distinguish this case from Kaleta, which approved the\\nsettlement because, inter alia, the settlement agreement “expressly permits”\\nthose affected by the bar order “to pursue their claims by ‘participat[ing] in the\\nclaims process for the Receiver's ultimate plan of distribution for the\\nReceivership Estate.’” See Kaleta, 530 F. App’x at 362–63 (alteration in\\noriginal). Barring Appellants’ claims to coverage under their insurance\\npolicies by claiming the proceeds of these policies as property of the\\nReceivership, and then barring Appellants’ from accessing even a portion of\\nthese proceeds through the Receivership claim process, undermines the\\nfairness of the settlement.\\n\\n\\n\\n 10 Soriano may not squarely apply to the extent that the settlement does not, on its\\nface, exhaust the policy limits. But this uncertainty in the law meant that settlement\\nbetween the Receiver and the Underwriters was fair game.\\n\\n 22\\n\\f Case: 17-10663 Document: 00514998485 Page: 23 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n The district court and Receiver lacked authority to dispossess claimants\\nof their legal rights to share in receivership assets “for the sake of the greater\\ngood.” The court’s duty, as previously described, is to assure that all claimants\\nagainst the Receivership have a reasonable opportunity to share in the estate’s\\nassets. Given the numerous exclusions to policy coverage, 11 the Appellants’\\nentitlement to proceeds may appear weak, but the court disclaimed deciding\\ncoverage issues, and the Appellants have identified several reasons, in addition\\nto Pendergest-Holt, why their contractual claims might prevail on final\\nadjudication. 12\\n Rather than extinguish the Appellants’ contractual claims, the court\\ncould have authorized them to be filed against the Receivership in tandem with\\nthe Stanford investors’ claims. Such “channeling orders” are often employed\\nto afford alternative satisfaction to competing claimants to receivership assets\\nwhile limiting their rights of legal recourse against the assets. See, e.g.,\\nDeYoung, 850 F.3d at 1182; see also Kaleta, 530 F. App’x at 360 (approving\\nclaims filing in receivership for barred litigants). In any event, the court may\\nhave intended to channel the Appellants’ claims here but simply overlooked\\ntheir omission from the extant procedures. 13\\n\\n\\n\\n The myriad of contested policy exclusions include the insured versus insured, money\\n 11\\n\\nlaundering, fraud, intentional corporate or business policy, and prior knowledge exclusions.\\n\\n 12 Appellants explain that a significant number of their group have no personal\\nliability, and, inferentially, should not be subject to policy exclusions, because they did not\\nsell Stanford CDs to investors. Further, because the Receiver’s claims against the Appellants\\nare not derivative, any recovery from the proceeds would not at all reduce or offset the\\nAppellants’ liability for fraudulent transfers. Finally, Appellants assert viable defenses to\\nthe clawback actions based, in part, on Texas law in this Receivership. See Janvey v. Golf\\nChannel, Inc., 487 S.W.3d 581, 582 (Tex. 2016) (recognizing defense to fraudulent transfer of\\nreasonably equivalent value received).\\n\\n 13The Receiver and Underwriters contend that in lieu of other modes of compensation\\nthrough the receivership, these Appellants have received “benefits,” however small, from the\\nsettlement because the insurance proceeds that have gone into the receivership estate offset\\n 23\\n\\f Case: 17-10663 Document: 00514998485 Page: 24 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n ii. Extracontractual Claims for Tort and Statutory Violations\\n By ignoring the distinction between Appellants’ contractual and\\nextracontractual claims against Underwriters, the district court erred legally\\nand abused its discretion in approving the bar orders. 14 These claims,\\nincluding common law bad faith breach of duty and claims under the Texas\\nInsurance Code, lie directly against the Underwriters and do not involve\\nproceeds from the insurance policies or other receivership assets. 15 These\\ndamage claims against the Underwriters exist independently; they do not arise\\nfrom derivative liability nor do they seek contribution or indemnity from the\\nestate. 16 As the preceding discussion explains in detail, receivership courts\\nhave no authority to dismiss claims that are unrelated to the receivership\\nestate. That the district court was “looking only to the fairness of the\\nsettlement as between the debtor and the settling claimant [and ignoring third-\\nparty rights] contravenes a basic notion of fairness.” Zale, 62 F.3d at 754\\n\\n\\n\\ntheir potential liability in the Receiver’s and other suits. The district court made no such\\nfinding, and we see no basis in the record for it.\\n\\n 14 The Receiver and Underwriters would pretermit any such distinction by contending\\nthat unless the Appellants had valid contractual claims for insurance from the Underwriters’\\npolicies, they could not bring extracontractual claims. This may well be accurate. The\\ndistrict court, however, refused to rule on the viability of Appellants’ contractual claims, and\\nwe need not undertake that task here. The basis of settlement for all concerned is to avoid\\ntedious litigation of insurance coverage claims.\\n\\n 15This principle has been described above in the related context of bankruptcy. See\\nMatter of Zale Corp., 62 F.3d 746, 756–57 (5th Cir. 1995); Matter of Vitek, Inc., 51 F.3d 530,\\n538 (5th Cir. 1995); In re Sportstuff, Inc., 430 B.R. 170, 178–79 (B.A.P. 8th Cir. 2010); see also\\nMatter of Buccaneer Res., LLC, 912 F.3d 291, 293–97 (5th Cir. 2019) (explicating the\\ndifference between derivative and non-derivative injuries and holding that a tortious\\ninterference claim by a former company president against the outside lenders is non-\\nderivative and separate from the bankruptcy estate).\\n\\n 16 See SEC v. DeYoung, 850 F.3d 1172; In re Heritage Bond Litig., 546 F.3d 667, 680\\n(9th Cir. 2008) (discussing settlement of a securities class action and distinguishing between\\nclaims for codefendant contribution and independent claims against settling defendants;\\nformer could be dismissed by bar order, but latter claims could not be).\\n 24\\n\\f Case: 17-10663 Document: 00514998485 Page: 25 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n(alteration in original) (citing United States v. AWECO, Inc., 725 F.2d 293, 298\\n(5th Cir.)).\\n As discussed above, the Receiver lacked standing to settle independent,\\nnon-derivative, non-contractual claims of these Appellants against the\\nUnderwriters. See DSCC, 712 F.3d at 190, 193 (receiver “has standing to\\nassert only the claims of the entities in receivership, not the claims of the\\nentities’ investor-creditors [coinsureds] . . .”). Of course, the Receiver and\\nUnderwriters were, as Appellants’ counsel colorfully described, all too happy\\nto compromise at the expense of Appellants’ rights. The court purported to\\njustify this result by claiming that “the bar orders are not settling claims, they\\nare enjoining them.” No matter the euphemism, a permanent bar order is a\\ndeath knell intended to extinguish the claims, which are a property interest,\\nhowever valued, of the Appellants.\\n Moreover, in approving the settlement and bar orders against these\\nAppellants, the district court overlooked problems inherent in the settling\\nparties’ positions. The Underwriters’ position was in conflict with the\\nAppellants: by means of the bar orders, the Underwriters limited their\\nexposure to further costly and time-consuming litigation over Appellants’ non-\\nderivative extracontractual claims against them. The Receiver was enabled by\\nthe settlement and bar orders to place Appellants in a vise: preserving his\\nability to sue Appellants for clawbacks even as the agreement stripped\\nAppellants’ access to any recompense from the Underwriters. 17 These\\n\\n\\n\\n\\n 17 The mediated settlement, in contrast, averted these conflicts of interest with the\\nReceiver’s release of claims against Appellants offsetting the Underwriters’ potential\\nextracontractual liability.\\n\\n 25\\n\\f Case: 17-10663 Document: 00514998485 Page: 26 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nproblems cast grave doubt on the fairness and equity of the settlement and bar\\norders reached without Appellants’ participation. 18\\n In sum, although we sympathize with the impetus to settle difficult and\\natomized issues of insurance coverage rather than dissipate receivership\\nassets in litigation, the settlement and bar orders violated fundamental limits\\non the authority of the court and Receiver. The court and Receiver could not\\nabrogate contractual claims of these Appellants to proceeds of Underwriters’\\npolicies without affording them an alternative compensation scheme similar,\\nif not identical, to the claims process for Stanford investors. The court could\\nnot authorize the Receiver and Underwriters to compromise their differences\\nwhile extinguishing the Appellants’ extracontractual claims against\\nUnderwriters. Equity must follow the law, which here constrains the court’s\\nand Receiver’s authority to protecting the assets of the receivership and claims\\ndirectly affecting those assets. 19\\n b. Appellant Cordell Haymon\\n Like the Alvarado and McDaniel Appellants, Appellant Cordell Haymon,\\na member of Stanford Trust Company’s board of Directors, was targeted by the\\n\\n\\n\\n When compared with DeYoung, 850 F.3d at 1182–83, the unsustainability of the\\n 18\\n\\nsettlement and bar orders here is manifest. Unlike that case, the extracontractual claims of\\nthese Appellants do not parallel those of the Receiver, Underwriters possess no\\ncontribution/indemnity claim against the receivership estate, and Appellants have been\\nprovided no channel to assert claims in the receivership.\\n\\n 19We reject Appellants’ due process claims against the settlement and bar orders.\\nThey contend that because they “had an interest in” the outcome of the settlement, and the\\nBar Order “fully and finally adjudicates Appellants’ independent state law contract and tort\\nclaims,” due process required at least the ability to introduce evidence at the hearing.\\nMcDaniel presses other constitutional claims. But Appellants were provided notice of the\\nsettlement hearing, were able to fully brief their position and provide affidavits, and they\\nhave offered nothing more on appeal. Although excluded from the settlement negotiations,\\nthey have shown no legal requirement that they be allowed to participate in a settlement\\nresolving claims for reimbursement against the limited policy proceeds. The applicable Texas\\nlaw allows insurers to settle with fewer than all of the insureds in such circumstances.\\nAppellants’ due process arguments fail, and McDaniel’s other claims are meritless.\\n 26\\n\\f Case: 17-10663 Document: 00514998485 Page: 27 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nReceiver and sought coverage of his defense costs under the insurance policies.\\nAfter the Underwriters denied his claim for coverage, he settled the Receiver’s\\nfiduciary duty breach suit for $2 million. Haymon asserts that he relied on the\\nlanguage of his settlement agreement, which specifically authorized the\\ncontinuation of his suit against the Underwriters. Only a few months later,\\nhowever, the final proposed settlement undid his expectations of recovery from\\nthe Underwriters. Haymon requested to intervene in the initial coverage\\ndispute between Underwriters and the Receiver, and he filed objections to the\\nproposed settlement. He argues now that the district court erred in barring all\\nof his contractual and extracontractual tort and statutory claims against the\\nUnderwriters.\\n To the extent that Haymon’s claims mirror those of Alvarado and\\nMcDaniel, the same results follow. The district court acted within its authority\\nto bar Haymon’s claim for contractual defense and indemnity under the\\ninsurance policies, but some alternate compensation mode from the\\nreceivership estate is required, and the court could not bar his extracontractual\\nclaims against the Underwriters. However, the ultimate evaluation of\\nHaymon’s claims may differ from that of the other Appellants for two reasons,\\nwhich the district court should assess on remand. First, because his insurance\\ncoverage claim was liquidated before the final settlement ($2 million potential\\nindemnity and $1.5 million defense costs) it was ripe for judicial determination\\nunder Pendergest-Holt. 20 Second, Haymon received a bar order, perhaps\\nvaluable to him, against any further litigation concerning his involvement with\\nStanford entities.\\n\\n\\n\\n 20 Finally, as noted in regard to the other Appellants, Haymon was afforded the\\nopportunity, and availed himself of the ability to press his constitutional objections to the\\nsettlement and bar orders. There was no failure of due process and his other vaguely\\nidentified constitutional objections are meritless.\\n 27\\n\\f Case: 17-10663 Document: 00514998485 Page: 28 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\n c. Appellant Louisiana Retirees\\n Unlike the foregoing Appellants, the Louisiana Retirees are not\\ncoinsureds under the insurance policies, and they are not being pursued in\\nIndirect Claim actions by the Receiver. Retirees have assiduously pursued\\nsecurities law claims against certain Stanford brokers and the Underwriters,\\nas insurers for those brokers, under the Louisiana Direct Action Statute, La.\\nR.S. 22:1269.\\n First, the parties dispute the meaning of the bar order and the extent to\\nwhich it bars the Retirees’ claims. The Receiver argues that the bar order\\napplies only to claims against the Underwriters and the Underwriters’\\nReleased Parties, defined as the officers, agents, etc. of Underwriters, and\\nexpressly excluding the officers, directors, or employees of Stanford Entities.\\nRetirees argue that it enjoins them from pursuing the Stanford Claims, defined\\nas “any action, lawsuit or claims brought by any Stanford Investor against\\nUnderwriters [or] . . . Underwriter’s Insureds.” In turn, Underwriters’\\nInsureds are defined as “any person that shall be an officer and director of any\\nStanford Entities . . . [or] any employee of any Stanford Entities.” On remand,\\nit would be appropriate for the district court to determine and clarify the\\nmeaning of the bar order as to the Retirees, keeping in mind that the district\\ncourt may not enjoin any claims by Retirees against the brokers that do not\\nimplicate the policy proceeds.\\n Second, the Retirees’ claims under the Louisiana direct action statute\\nunequivocally implicate the policy proceeds and therefore assets of the\\nreceivership. The statute specifies that an action can be brought “within the\\nterms and limits of the policy by the injured person.” La. Rev. Stat. 22:1269(A),\\n(C), (D). It “does not create an independent cause of action against the\\ninsurer[;] it merely grants a procedural right of action against an insurer where\\nthe plaintiff has a substantive cause of action against the insured.” Soileau v.\\n 28\\n\\f Case: 17-10663 Document: 00514998485 Page: 29 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nSmith True Value & Rental, 144 So. 3d 771, 780 (La. 2013). As such, the\\nReceiver could settle with the Underwriters notwithstanding the direct action\\nclaim just as he could settle regardless of the Employee Appellants’ contractual\\nclaims to policy proceeds. Further, as former investors in the Stanford entities,\\nthe Retirees were afforded a means of filing claims apart from the direct action\\nsuit, and many have availed themselves of that opportunity. Consequently,\\nthe Retirees’ direct action suit against the Underwriters amounts to a\\nredundant claim on receivership assets.\\n Nevertheless, the Retirees assert several arguments that have no\\nbearing on the permissibility of the settlement and bar order as to them. They\\ncontend first that the settlement and bar order conflict with the Supreme\\nCourt’s decision in Chadbourne & Parke LLP v. Troice, 134 S. Ct. 1058 (2014),\\nwhich they characterize as “acknowledg[ing] the Louisiana Retirees’ rights to\\nbring their state law securities claims in Louisiana state court.” But Troice\\nheld only that the Securities Litigation Uniform Standards Act did not preempt\\nthe Louisiana Appellants’ state court claims. The Court’s ruling did not bear\\non the merits of or procedure for the Retirees’ state law case.\\n Second, they contend that DSCC, 712 F.3d at 185, forbids giving the\\nreceiver the right to “control the settlement of a claim it does not own.” That\\nis certainly correct according to our previous discussion, but here, the Receiver\\nhad standing to pursue its own claims as coinsured under the Underwriters’\\npolicies, such claims perfected the Receiver’s interest in a valuable asset, and\\nTexas law provided the right to settle them even at the expense of the Retirees’\\ndirect action claims.\\n The Retirees argue that the district court should have first determined\\nthe disputed legal questions about the magnitude of, and legal rights to, the\\npolicy proceeds before approving the settlement and bar orders under In re\\nLouisiana World Exposition, Inc., 832 F.2d 1391 (5th Cir. 1987). This\\n 29\\n\\f Case: 17-10663 Document: 00514998485 Page: 30 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nargument simply misreads that case. The court in Louisiana World explicitly\\ndistinguished the facts before it from cases involving coinsureds with equal\\nclaims to the policy proceeds. Moreover, at least one disputed policy – the\\nFidelity Bond – covers only the Receivership entities. 21 It was not an abuse of\\ndiscretion for the district court to hold that equity favored avoiding costly\\nlitigation and dissipation of receivership assets by allowing the Receiver, a\\ncoinsured with equal claim to the policy proceeds, to settle with the\\nUnderwriters. Avoiding protracted legal examination of the policy exclusions,\\nwhich could just as easily bar Retirees and others from the policy proceeds,\\nwas precisely the point of the settlement.\\n Fourth, Retirees assert that the Anti-Injunction Act, 28 U.S.C. § 2283\\n(“AIA”), prevented the court from issuing its bar orders. This argument has no\\nmerit. Under the AIA, “any injunction against state court proceedings\\notherwise proper under general equitable principles must be based on one of\\nthe specific statutory exceptions to [the Anti-Injunction Act] if it is to be\\nupheld.” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281,\\n287, 90 S. Ct. 1739, 1743 (1970). The specific exceptions are express\\nauthorization by an Act of Congress, where necessary in aid of the court’s\\njurisdiction, or to protect or effectuate the court’s judgments. Id. at 288,\\n90 S. Ct. at 1743–44. The AIA does not prohibit the settlement and bar order\\nbecause, pertinent to the Retirees, they cover only those claims implicating the\\ninsurance policy proceeds and so were necessary in aid of the district court’s\\njurisdiction over those proceeds. The district court has exclusive in rem\\njurisdiction over the policy proceeds and permanent bar orders have been\\napproved as parts of settlements to secure receivership assets. See, e.g., SEC\\n\\n\\n 21 As with the other policies, the Underwriters and Receiver dispute the scope of\\ncoverage and exclusions of the Fidelity Bond, and whether the Receiver may access the\\nproceeds, but there is no argument that the Retirees may access these proceeds.\\n 30\\n\\f Case: 17-10663 Document: 00514998485 Page: 31 Date Filed: 06/17/2019\\n\\n\\n\\n No. 17-10663\\nv. Parish, No. 2:07-CV-00919-DCN, 2010 WL 8347143 (D.S.C. Feb. 10, 2010)\\n(“[T]he bar order is necessary to preserve and aid this court’s jurisdiction over\\nthe receivership estate, such that the Anti-Injunction Act would not prohibit\\nthe bar order even if there were pending state court actions, which there are\\nnot.”).\\n For these reasons, the settlement and bar orders did not interfere with\\nor improperly extinguish the Retirees’ rights.\\n CONCLUSION\\n For the foregoing reasons, we VACATE the district court’s orders\\napproving the settlement and bar orders and REMAND for further\\nproceedings consistent with this opinion. 22\\n\\n\\n\\n\\n Vacatur and remand will probably necessitate the court’s reconsideration of the\\n 22\\n\\nattorneys’ fee award to the Receiver’s counsel.\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2459,"cells":{"id":{"kind":"number","value":4630567,"string":"4,630,567"},"name":{"kind":"string","value":"Quintin Phillippe JONES, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee"},"name_abbreviation":{"kind":"string","value":"Quintin Jones v. Lorie Davis, Director"},"decision_date":{"kind":"string","value":"2019-06-18"},"docket_number":{"kind":"string","value":"16-70003"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Dennis, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-70003 Document: 00515000359 Page: 1 Date Filed: 06/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-70003 June 18, 2019\\n Lyle W. Cayce\\n Clerk\\nQUINTIN PHILLIPPE JONES,\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n ON PETITION FOR REHEARING AND REHEARING EN BANC\\nBefore HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n Treating the respondent-appellee’s petition for rehearing en banc as a\\npetition for panel rehearing, the petition is granted. We withdraw our prior\\nopinion 1 and substitute the following. We deny the petitioner-appellant’s\\npetition for panel rehearing.\\n Quintin Phillippe Jones was sentenced to death by a Texas court. He now\\nappeals the district court’s denial of his federal application for post-conviction\\n\\n\\n\\n 1 Jones v. Davis, 922 F.3d 271 (5th Cir. 2019).\\n\\f Case: 16-70003 Document: 00515000359 Page: 2 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nrelief, arguing that evidence was erroneously admitted at sentencing in\\nviolation of his Fifth Amendment rights and that the district court improperly\\ndenied him further investigative funding. We granted a certificate of\\nappealability, and now affirm the district court’s judgment and denial of\\nfunding.\\n I\\n Jones beat his eighty-three-year-old great aunt, Berthena Bryant, to\\ndeath with a baseball bat after she refused to continue lending him money. 2\\nFort Worth police arrested him the next day for outstanding traffic warrants\\nand possession of a controlled substance. They interviewed him twice about\\nBryant’s murder. 3 The first time, Jones denied involvement. The second time,\\nhe waived his Miranda rights and confessed to the murder—explaining that\\nhe had an alter ego named James who lived in his head and who was\\nresponsible for killing Bryant. 4\\n Based on a lead from Jones’s sister, the police also investigated Jones’s\\ninvolvement in the murders of Marc Sanders and Clark Peoples. 5 Nine days\\nafter Jones confessed to killing Bryant, a Texas Ranger and sheriff’s deputy\\ninterrogated Jones about the Sanders and Peoples murders. 6 Jones told them\\nthat he murdered Sanders and Peoples with his close friend Ricky “Red” Roosa.\\nHe described how Roosa was the primary decision-maker and directed Jones\\nto take steps like restraining the victims and disposing of their bodies. 7\\nAuthorities only informed Jones of his Miranda rights after this statement was\\n\\n\\n\\n\\n 2 Jones v. State, 119 S.W.3d 766, 770–71 (Tex. Crim. App. 2003).\\n 3 Id. at 771.\\n 4 Id.\\n 5 Id.\\n 6 Id.\\n 7 Id. at 781, 792–94.\\n\\n 2\\n\\f Case: 16-70003 Document: 00515000359 Page: 3 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nwritten down and he was about to sign; he proceeded to sign it. 8 While Jones\\nwas only tried for Bryant’s murder and this written statement was not\\nintroduced at the guilt phase of his trial, it was introduced in the punishment\\nphase.\\n A Texas jury convicted Jones of capital murder. At the punishment phase\\nof his trial, the jury was asked to answer Texas’s two special issues: “1) would\\nappellant probably commit future criminal acts of violence that would\\nconstitute a continuing threat to society; and 2) whether, taking into\\nconsideration all of the evidence, there are sufficient mitigating circumstances\\nto warrant a life sentence rather than a death sentence.” 9 Based on the jury’s\\nfindings that Jones was likely to commit future acts of violence and that there\\nwere insufficient mitigating circumstances to warrant a life sentence, the trial\\ncourt sentenced Jones to death. 10 The Texas Court of Criminal Appeals, or\\nCCA, affirmed his conviction and sentence, 11 and the United States Supreme\\nCourt denied certiorari. 12 After allowing Jones multiple extensions of time to\\nfile his state habeas petition, the CCA denied Jones’s application in 2005. 13\\n Despite Jones’s persistent efforts to have substitute or additional counsel\\nappointed for his federal postconviction proceedings, the district court\\nappointed his state habeas attorney, Jack Strickland, in an order that also\\ndirected Jones to “timely file his federal petition for writ of habeas corpus” and\\nrequired “[t]he petition [to] demonstrate that it is timely filed under 28 U.S.C.\\n\\n\\n\\n\\n 8 Id. at 772.\\n 9 Id. at 777.\\n 10 Id. at 770.\\n 11 Id.\\n 12 Jones v. Texas, 542 U.S. 905 (2004).\\n 13 Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030, at *1 (Tex. Crim. App. Sept.\\n\\n14, 2005) (per curiam).\\n 3\\n\\f Case: 16-70003 Document: 00515000359 Page: 4 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\n§ 2244(d)(1).” Strickland miscalculated the filing deadline and filed Jones’s\\nfederal petition 149 days late. 14\\n After Strickland did not contest the dismissal of the petition before the\\ndistrict court or on appeal, 15 the district court appointed new counsel and\\nvacated its dismissal to give Jones a chance to respond. After an appeal and\\nremand concerning whether Jones was entitled to equitable tolling, the district\\ncourt initially found that no grounds existed for equitable tolling, then was\\npersuaded to reverse course after Jones moved for reconsideration.\\n Jones filed an amended petition adding claims for relief, and sought\\nadditional funding for investigative services. The district court denied Jones’s\\ninvestigative funding request, then denied each of Jones’s six claims for relief.\\nIt denied Jones a certificate of appealability on all claims. We granted Jones a\\ncertificate of appealability on his claim that the trial court violated his Fifth\\nAmendment rights by admitting an unmirandized confession at the\\n\\n\\n\\n\\n 14 While Strickland thought the deadline fell one year after the state court’s denial of\\nJones’s habeas petition, the correct deadline was one year after the denial of Jones’s petition\\nfor certiorari on direct appeal, with tolling for the pendency of the state habeas proceedings:\\nApril 18, 2006. See 28 U.S.C. § 2244(d). And, although the federal filing deadline was tolled\\nwhile Jones’s state habeas petition was under consideration, it was not tolled for the 149-day\\nperiod between when the Supreme Court denied certiorari on direct appeal and Jones filed\\nhis state petition. Jones’s federal petition was precisely 149 days late.\\n As the district court explained, this was not an inexplicable error. Typically, the\\ndeadline to file a post-conviction petition in Texas state court passes before the case is\\nfinalized on direct appeal. Where a petitioner files a state habeas application before the\\njudgment is finalized on direct review, the one-year federal limitations period is instantly\\ntolled when the direct appeal terminates, and only resumes when the state habeas\\nproceedings are finalized. Here, in contrast, the deadline for Jones’s state habeas petition\\nwas tolled because Jones received an extension allowing him to file the state petition after\\nthe Supreme Court denied certiorari on direct appeal.\\n 15 Strickland informed Jones that he was investigating options, but did not notice an\\n\\nappeal in this court or tell Jones that he was not filing an appeal.\\n 4\\n\\f Case: 16-70003 Document: 00515000359 Page: 5 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\npunishment phase, 16 and instructed Jones to simultaneously brief his appeal\\nfrom the district court’s denial of investigative funding. 17\\n We conclude that Jones is not entitled to relief on his Fifth Amendment\\nclaim, and that the district court did not abuse its discretion in denying\\ninvestigative funding. As a result, we do not address the Director’s argument\\nthat the district court erred in equitably tolling the limitations period for\\nJones’s federal petition. 18\\n II\\n We review a district court’s grant of summary judgment denying federal\\nhabeas relief de novo. 19 Under AEDPA, we evaluate claims decided on the\\nmerits by the state court for whether they were “contrary to, or involved an\\nunreasonable application of, clearly established Federal law,” or whether they\\n“resulted in a decision that was based on an unreasonable determination of the\\nfacts in light of the evidence presented in the State court proceeding.” 20 A\\ndecision is “contrary to” such clearly established federal law if it either “applies\\na rule that contradicts the governing law set forth” in the Supreme Court’s\\nholdings or “confronts a set of facts that are materially indistinguishable from\\na decision of [the Supreme Court] and nevertheless arrives at a result different\\n\\n\\n\\n\\n 16 Jones v. Davis, 673 F. App’x 369, 376 (5th Cir. 2016) (per curiam). The Supreme\\nCourt denied certiorari on the claim for which we declined to grant Jones a COA. Jones v.\\nDavis, 137 S. Ct. 2188 (2017).\\n 17 A COA is not needed to appeal this issue, so when we granted Jones a COA on the\\n\\nMiranda issue, we instructed him to brief his § 3599 argument at the same time. Jones, 673\\nF. App’x at 376.\\n 18 See Garcia v. Quarterman, 454 F.3d 441, 444 n.5 (5th Cir. 2006) (“Because we deny\\n\\nthe habeas petition, we do not address the issue of tolling . . . .”); see also Holland v. Florida,\\n560 U.S. 631, 645 (2010) (observing that AEDPA’s one-year limitations period is not\\njurisdictional).\\n 19 Whitaker v. Davis, 853 F.3d 253, 257 (5th Cir. 2017).\\n 20 28 U.S.C. § 2254(d).\\n\\n 5\\n\\f Case: 16-70003 Document: 00515000359 Page: 6 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nfrom [Supreme Court] precedent.” 21 A state court unreasonably applies such\\nlaw when it “identifies the correct governing legal principle from [the Supreme]\\nCourt’s decisions but unreasonably applies that principle to the facts of the\\nprisoner’s case.” 22 In reviewing state court decisions, we bear in mind that\\n“[s]ection 2254(d)(1) provides a remedy for instances in which a state court\\nunreasonably applies [the Supreme] Court’s precedent; it does not require\\nstate courts to extend that precedent or license federal courts to treat the\\nfailure to do so as error.” 23\\n As we have explained, Jones was prosecuted solely for the capital murder\\nof his aunt, but evidence was admitted at the punishment phase as to his role\\nin the murders of Peoples and Sanders. That evidence included a written\\nconfession that Jones gave to authorities where he was only informed of his\\nrights immediately before signing the confession. The Texas Court of Criminal\\nAppeals held on direct appeal that the confession was taken in contravention\\nof Miranda v. Arizona, but that its admission was harmless error under the\\nSupreme Court’s decision in Chapman v. California. 24 Jones argues that this\\nwas contrary to clearly established law because a confession to murder can\\nnever be harmless, and that at a minimum, the state court unreasonably\\napplied the Chapman standard for harmless error.\\n A\\n First, Jones argues that the Texas Court of Criminal Appeals’\\nharmlessness determination was contrary to clearly established federal law\\nbecause Miranda violations should not be subject to harmless-error analysis.\\n\\n\\n\\n 21 Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The governing Supreme Court\\nprecedent must have been clearly established at the time of the state court’s adjudication.\\nSee, e.g., White v. Woodall, 572 U.S. 415, 419–20 (2014).\\n 22 Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).\\n 23 White, 572 U.S. at 426 (emphasis omitted).\\n 24 Jones, 119 S.W.3d at 770–83.\\n\\n 6\\n\\f Case: 16-70003 Document: 00515000359 Page: 7 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nHe relies heavily on Justice White’s opinion—joined by Justices Marshall,\\nBlackmun, and Stevens—in Arizona v. Fulminante, which he characterizes as\\na plurality holding that Miranda violations are not subject to harmless error\\nanalysis. 25 There are several reasons why the state court’s consideration of\\nharmless error was not contrary to clearly established federal law. Most\\nplainly, Fulminante addressed coerced confessions, not confessions taken in\\nviolation of Miranda. 26 And the Fulminante “plurality” Jones cites was in fact\\na dissent on the precise point at issue—Justice White explicitly acknowledged\\nin the relevant section of the opinion that “five Justices have determined that\\nharmless-error analysis applies to coerced confessions,” and that portion was\\nlabeled as a dissent. 27 Other courts and treatises therefore correctly treat\\nFulminante as holding that the admission of a coerced confession is “trial\\nerror” subject to harmless-error analysis, as opposed to “structural error” not\\nsubject to such analysis. 28 In sum, no Supreme Court precedent holds that\\nMiranda violations are not subject to harmless-error analysis, and the Court\\nof Criminal Appeals’ decision to apply harmless-error analysis did not conflict\\nwith clearly established federal law.\\n B\\n Second, Jones argues that the Court of Criminal Appeals unreasonably\\napplied Chapman in concluding that the admission of the confession was\\nharmless beyond a reasonable doubt. 29 We disagree, mindful of the Chapman\\n\\n\\n\\n 25 499 U.S. 279 (1991).\\n 26 Id. at 287–88. Jones shifts his characterization of the confession over the course of\\nhis briefing from having been taken in violation of Miranda to having been coerced. But he\\npresents no argument that the confession was coerced, and no Texas court evaluated such a\\nclaim.\\n 27 Fulminante, 499 U.S. at 282, 288, 295.\\n 28 See, e.g., 3B Fed. Prac. & Proc. Crim. § 855 (4th ed.).\\n 29 Chapman requires a court to declare an error harmless beyond a reasonable doubt\\n\\nto excuse it as harmless error. Chapman v. California, 386 U.S. 18, 24 (1967).\\n 7\\n\\f Case: 16-70003 Document: 00515000359 Page: 8 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\ninquiry’s fact-sensitive nature and the sizable deference we must accord a state\\ncourt determination on the merits under AEDPA. The Court of Criminal\\nAppeals concluded on direct appeal that given the other evidence introduced\\nat the punishment stage, Jones’s confession to the Sanders and Peoples\\nmurders did not impact—beyond a reasonable doubt—the jury’s answer to the\\nspecial issues of whether Jones was likely to commit future acts of violence and\\nwhether there were sufficient mitigating circumstances. 30 The jury was\\npresented with extensive evidence that Jones murdered Peoples and Sanders.\\nOn cross-examination, Jones’s sister testified that Jones had told her about the\\nmurders in detail that substantially mirrored what Jones included in his\\nwritten confession. 31 An expert for the State also testified that when he\\ninterviewed Jones, Jones blamed his alter ego James for Bryant’s death\\nbecause he “wouldn’t have killed his aunt if Red hadn’t made him help kill\\nSanders and Peoples.” 32 Jones’s written statement confessing to the murders\\nof Peoples and Sanders introduced some details that did not come out through\\nother testimony at trial—most significantly, Jones’s statement indicated that\\nhe and Roosa initially targeted Peoples because Roosa asked him if he knew\\nanyone with money. 33 All told, however, the Court of Criminal Appeals\\ndetermined that Jones’s participation in the murders and details of the\\nmurders were “well established through other witnesses and evidence.” 34 Jones\\ndid not dispute at trial or on appeal that he participated in the murders. 35\\n\\n\\n 30 Jones, 119 S.W.3d at 777–83. Two judges dissented, writing that they “[w]ould not\\nconclude, beyond a reasonable doubt, that the constitutional violation in admitting [Jones’s]\\nconfessions to two additional murders at the punishment stage did not contribute to the jury’s\\nverdict for capital punishment,” and would remand for a new trial on punishment.” Id. at\\n803–04 (Womack, J., dissenting).\\n 31 Id. at 779–80 (majority opinion).\\n 32 Id. at 780.\\n 33 Id. at 782, 792.\\n 34 Id. at 780.\\n 35 Id. at 782.\\n\\n 8\\n\\f Case: 16-70003 Document: 00515000359 Page: 9 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\n The Court of Criminal Appeals also noted the extensive evidence of\\nJones’s future dangerousness extending beyond the Sanders and Peoples\\nmurders: he brutally beat his aunt to death to steal money for drugs; had been\\nconvicted of several juvenile offenses, including for assaulting two teachers,\\npossessing a handgun, and setting fire to another student’s hair; and was a\\nmember of a gang. 36 In sum, it found that the written statement “did not carry\\nthe weight a confession might normally bear in light of the volume and weight\\nof the other evidence . . . on the future dangerousness issue.” 37 While it\\nconcluded that the prosecution’s reference to the written confession in its\\nclosing argument was “somewhat troubling”—the prosecutor suggested that\\nJones was aware that Red was planning to kill Peoples because “it beg[an]”\\nwhen Red asked Jones if he knew anyone with money—the court concluded\\nthat this reference did not play a significant role beyond “rhetorical flourish”\\nin responding to the defense theory. 38 As a result, it found that “beyond a\\nreasonable doubt . . . the erroneous admission of the [written] statement did\\nnot materially contribute to the jury’s finding that there is a probability that\\n[Jones] would commit criminal acts of violence that would constitute a\\ncontinuing threat to society.” 39\\n As for the mitigation special issue, the court concluded that Jones’s\\nwritten confession to the Sanders and Peoples murders essentially emphasized\\nthat Jones was following Red’s instructions—reinforcing “the basic defensive\\ntheory at the punishment stage that it was Red’s bad influence that set\\nappellant down the path toward his alter ego’s murder of his aunt.” 40 The\\nconfession “by no means belittled [Jones’s] overall mitigation case”—which\\n\\n\\n 36 Id. at 780–81.\\n 37 Id. at 780.\\n 38 Id. at 782.\\n 39 Id. at 783.\\n 40 Id. at 781.\\n\\n 9\\n\\f Case: 16-70003 Document: 00515000359 Page: 10 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nrested on evidence of Jones’s dissociative mental disorder. 41 These\\nobservations led the court to hold that “had the [written] statement not been\\nerroneously admitted into evidence, there is no reasonable likelihood that the\\njury might have returned an affirmative answer to the mitigation special\\nissue.” 42\\n The CCA’s decision on direct appeal, approved of in Jones’s post-\\nconviction proceedings, did not unreasonably apply Chapman. The court\\nrecognized and accounted for the significant impact that a defendant’s\\nconfession has on a jury, and concluded that given the particularities of this\\ntrial record, it was confident beyond a reasonable doubt that the admission of\\nthe written confession did not affect the jury’s answers to the special issues.\\nCrucially, Jones never contested that he committed the murders described in\\nthe confession, and the information he provided in the confession was largely\\npresented to the jury through other admissible avenues. Under our deferential\\nreview of the state court determination, we cannot disturb its conclusion. 43\\n III\\n We turn to Jones’s argument that the district court improperly denied\\nhim investigative funding under 18 U.S.C. § 3599(f). Section 3599(f) allows a\\ncourt to authorize funding for “investigative, expert, or other services” that are\\n“reasonably necessary for the representation of the defendant, whether in\\nconnection with issues relating to guilt or the sentence.” We review a district\\n\\n\\n\\n 41 Id. at 782.\\n 42 Id. at 783.\\n 43 To the extent that Jones argues that the confession in violation of Miranda led him\\n\\nto make other confessions to people who later testified at his trial, and that those confessions\\nwere “fruit of the poisonous tree,” this misapprehends the sweep of the evidence against him,\\nas well as the Supreme Court’s statements on the matter. See United States v. Patane, 542\\nU.S. 630, 639 (2004) (explaining that “the Miranda rule ‘does not require that the [otherwise\\nvoluntary] statements [taken without complying with the rule] and their fruits be discarded\\nas inherently tainted’” (quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)).\\n 10\\n\\f Case: 16-70003 Document: 00515000359 Page: 11 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\ncourt’s denial of funding under this section for abuse of discretion. 44 The\\ndistrict court did not abuse its discretion here.\\n In Ayestas v. Davis, the Supreme Court rejected our prior “substantial\\nneed” standard for reviewing challenges to denials of § 3599 funding. It held\\nthat the “substantial need” requirement was more demanding than the\\nstatute’s requirement that the services sought be “reasonably necessary” to a\\ndefendant’s post-conviction challenge. 45 It also made clear, however, that “[a]\\nnatural consideration informing the exercise of [the district court’s] discretion\\nis the likelihood that the contemplated services will help the applicant win\\nrelief.” 46 Therefore, “[p]roper application of the ‘reasonably necessary’ standard\\nthus requires courts to consider the potential merits of the claims that the\\napplicant wants to pursue, the likelihood that the services will generate useful\\nand admissible evidence, and the prospect that the applicant will be able to\\nclear any procedural hurdles standing in the way.” 47\\n Jones sought investigative funding to develop a potential claim under\\nWiggins v. Smith 48 that his trial counsel was ineffective for failing to\\nsufficiently investigate and present mitigation evidence about Jones’s social\\nhistory, including his mental health, abusive childhood, and history of\\nsubstance addiction. 49 The district court, writing before the Supreme Court\\ndecided Ayestas, offered several reasons for denying Jones § 3599 funding. It\\n\\n\\n\\n 44 See Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).\\n 45 Id. at 1092–93.\\n 46 Id. at 1094 (“After all, the proposed services must be ‘reasonably necessary’ for the\\n\\napplicant’s representation, and it would not be reasonable—in fact, it would be quite\\nunreasonable—to think that services are necessary to the applicant’s representation if,\\nrealistically speaking, they stand little hope of helping him win relief.”).\\n 47 Id.\\n 48 539 U.S. 510 (2003).\\n 49 The funding would also partially contribute to investigating Jones’s state habeas\\n\\ncounsel’s ineffectiveness, which would help combat the procedural default of his ineffective-\\nassistance-of-trial-counsel claim.\\n 11\\n\\f Case: 16-70003 Document: 00515000359 Page: 12 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nobserved that “there is no question that [Jones’s new federal habeas] counsel\\npreviously investigated, prepared, and was compensated for an amended\\npetition containing substantially the same issues for which she now seeks\\nfunding.” And it found that Jones had not demonstrated “reasonable necessity”\\nfor a 400-hour investigation costing $30,000, because Jones had failed to\\ndemonstrate sufficient likelihood that his trial defense team inadequately\\ninvestigated the claims. Most clearly, Jones failed to address the testimony\\nprovided by the defense’s mental health experts at trial—one of whom had\\ninterviewed Jones’s family members and looked at relevant school, hospital,\\nand police records, and the other of whom submitted a report addressing\\nJones’s history of drug and alcohol abuse and other factors in his history\\ncontributing to emotional disturbance. 50 Even though Jones identified “red\\nflags” involving alcohol and substance addiction and childhood physical and\\nsexual abuse, the district court concluded that he had not shown that he was\\nlikely to uncover anything beyond what his experts had already addressed:\\n“[t]he funding statute is not designed to provide petitioner with unlimited\\nresources to investigate speculative claims.” 51 This was especially so where\\nJones sought services in excess of $7,500 and therefore needed to show that\\nexcess funding was “necessary to provide fair compensation for services of an\\nunusual character or duration,” 52 but wholly failed to address this\\nrequirement.\\n\\n\\n\\n 50 Jones argued that his trial investigator spent inadequate time investigating\\npotential mitigation evidence and witnesses. He did not address the fact that his experts\\nevidently reviewed and cited evidence on the precise issues he sought funding to investigate,\\nor offer insight into why he viewed that investigation as deficient.\\n 51 While the district court acknowledged that a petitioner may be entitled to funding\\n\\nto investigate unexhausted claims of trial counsel ineffectiveness—on the premise that state\\nhabeas counsel was also ineffective—the court concluded that Jones had not demonstrated\\nthat he was likely to uncover further evidence.\\n 52 18 U.S.C. § 3599(g)(2).\\n\\n 12\\n\\f Case: 16-70003 Document: 00515000359 Page: 13 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\n Although the district court denied funding before the Supreme Court’s\\ndecision in Ayestas, the denial did not hinge on our now-rejected requirement\\nthat Jones show “substantial need” for the funding. Instead, it viewed Jones’s\\nrequest for additional funding as effectively seeking a full retrial of the issues\\nalready litigated in the state court. Ayestas did not disturb the long-settled\\nprinciple that district courts have discretion to separate “fishing expedition[s]”\\nfrom requests for funding to support plausible defenses. 53 Because “the reasons\\nthe district court gave for its ruling remain sound after Ayestas,” 54 we conclude\\nthat remand is unnecessary and affirm the denial of funding.\\n IV\\n We affirm the judgment of the district court.\\n\\n\\n\\n\\n 53 See Ayestas, 138 S. Ct. at 1094–95.\\n 54 Mamou v. Davis, 742 F. App’x 820, 824 (5th Cir. 2018) (affirming denial of funding\\nwithout remand where the district court found that the petitioner had failed to provide\\n“sufficient detail” about the bases of his underlying ineffective assistance of counsel claim);\\nsee Ochoa v. Davis, 750 F. App’x 365, 372–73 (5th Cir. 2018) (per curiam) (affirming denial\\nof funding without remand where the petitioner “ha[d] not explained how further\\ninvestigation would yield evidence that is different from what was available at the time of\\nhis trial” and was instead “simply seeking to ‘turn over every stone’”).\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407820/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630567/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Quintin Phillippe JONES, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-70003 Document: 00515000359 Page: 1 Date Filed: 06/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 16-70003 June 18, 2019\n Lyle W. Cayce\n Clerk\nQUINTIN PHILLIPPE JONES,\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n ON PETITION FOR REHEARING AND REHEARING EN BANC\nBefore HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n Treating the respondent-appellee’s petition for rehearing en banc as a\npetition for panel rehearing, the petition is granted. We withdraw our prior\nopinion 1 and substitute the following. We deny the petitioner-appellant’s\npetition for panel rehearing.\n Quintin Phillippe Jones was sentenced to death by a Texas court. He now\nappeals the district court’s denial of his federal application for post-conviction\n\n\n\n 1 Jones v. Davis, 922 F.3d 271 (5th Cir. 2019).\n\f Case: 16-70003 Document: 00515000359 Page: 2 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\nrelief, arguing that evidence was erroneously admitted at sentencing in\nviolation of his Fifth Amendment rights and that the district court improperly\ndenied him further investigative funding. We granted a certificate of\nappealability, and now affirm the district court’s judgment and denial of\nfunding.\n I\n Jones beat his eighty-three-year-old great aunt, Berthena Bryant, to\ndeath with a baseball bat after she refused to continue lending him money. 2\nFort Worth police arrested him the next day for outstanding traffic warrants\nand possession of a controlled substance. They interviewed him twice about\nBryant’s murder. 3 The first time, Jones denied involvement. The second time,\nhe waived his Miranda rights and confessed to the murder—explaining that\nhe had an alter ego named James who lived in his head and who was\nresponsible for killing Bryant. 4\n Based on a lead from Jones’s sister, the police also investigated Jones’s\ninvolvement in the murders of Marc Sanders and Clark Peoples. 5 Nine days\nafter Jones confessed to killing Bryant, a Texas Ranger and sheriff’s deputy\ninterrogated Jones about the Sanders and Peoples murders. 6 Jones told them\nthat he murdered Sanders and Peoples with his close friend Ricky “Red” Roosa.\nHe described how Roosa was the primary decision-maker and directed Jones\nto take steps like restraining the victims and disposing of their bodies. 7\nAuthorities only informed Jones of his Miranda rights after this statement was\n\n\n\n\n 2 Jones v. State, 119 S.W.3d 766, 770–71 (Tex. Crim. App. 2003).\n 3 Id. at 771.\n 4 Id.\n 5 Id.\n 6 Id.\n 7 Id. at 781, 792–94.\n\n 2\n\f Case: 16-70003 Document: 00515000359 Page: 3 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\nwritten down and he was about to sign; he proceeded to sign it. 8 While Jones\nwas only tried for Bryant’s murder and this written statement was not\nintroduced at the guilt phase of his trial, it was introduced in the punishment\nphase.\n A Texas jury convicted Jones of capital murder. At the punishment phase\nof his trial, the jury was asked to answer Texas’s two special issues: “1) would\nappellant probably commit future criminal acts of violence that would\nconstitute a continuing threat to society; and 2) whether, taking into\nconsideration all of the evidence, there are sufficient mitigating circumstances\nto warrant a life sentence rather than a death sentence.” 9 Based on the jury’s\nfindings that Jones was likely to commit future acts of violence and that there\nwere insufficient mitigating circumstances to warrant a life sentence, the trial\ncourt sentenced Jones to death. 10 The Texas Court of Criminal Appeals, or\nCCA, affirmed his conviction and sentence, 11 and the United States Supreme\nCourt denied certiorari. 12 After allowing Jones multiple extensions of time to\nfile his state habeas petition, the CCA denied Jones’s application in 2005. 13\n Despite Jones’s persistent efforts to have substitute or additional counsel\nappointed for his federal postconviction proceedings, the district court\nappointed his state habeas attorney, Jack Strickland, in an order that also\ndirected Jones to “timely file his federal petition for writ of habeas corpus” and\nrequired “[t]he petition [to] demonstrate that it is timely filed under 28 U.S.C.\n\n\n\n\n 8 Id. at 772.\n 9 Id. at 777.\n 10 Id. at 770.\n 11 Id.\n 12 Jones v. Texas, 542 U.S. 905 (2004).\n 13 Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030, at *1 (Tex. Crim. App. Sept.\n\n14, 2005) (per curiam).\n 3\n\f Case: 16-70003 Document: 00515000359 Page: 4 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\n§ 2244(d)(1).” Strickland miscalculated the filing deadline and filed Jones’s\nfederal petition 149 days late. 14\n After Strickland did not contest the dismissal of the petition before the\ndistrict court or on appeal, 15 the district court appointed new counsel and\nvacated its dismissal to give Jones a chance to respond. After an appeal and\nremand concerning whether Jones was entitled to equitable tolling, the district\ncourt initially found that no grounds existed for equitable tolling, then was\npersuaded to reverse course after Jones moved for reconsideration.\n Jones filed an amended petition adding claims for relief, and sought\nadditional funding for investigative services. The district court denied Jones’s\ninvestigative funding request, then denied each of Jones’s six claims for relief.\nIt denied Jones a certificate of appealability on all claims. We granted Jones a\ncertificate of appealability on his claim that the trial court violated his Fifth\nAmendment rights by admitting an unmirandized confession at the\n\n\n\n\n 14 While Strickland thought the deadline fell one year after the state court’s denial of\nJones’s habeas petition, the correct deadline was one year after the denial of Jones’s petition\nfor certiorari on direct appeal, with tolling for the pendency of the state habeas proceedings:\nApril 18, 2006. See 28 U.S.C. § 2244(d). And, although the federal filing deadline was tolled\nwhile Jones’s state habeas petition was under consideration, it was not tolled for the 149-day\nperiod between when the Supreme Court denied certiorari on direct appeal and Jones filed\nhis state petition. Jones’s federal petition was precisely 149 days late.\n As the district court explained, this was not an inexplicable error. Typically, the\ndeadline to file a post-conviction petition in Texas state court passes before the case is\nfinalized on direct appeal. Where a petitioner files a state habeas application before the\njudgment is finalized on direct review, the one-year federal limitations period is instantly\ntolled when the direct appeal terminates, and only resumes when the state habeas\nproceedings are finalized. Here, in contrast, the deadline for Jones’s state habeas petition\nwas tolled because Jones received an extension allowing him to file the state petition after\nthe Supreme Court denied certiorari on direct appeal.\n 15 Strickland informed Jones that he was investigating options, but did not notice an\n\nappeal in this court or tell Jones that he was not filing an appeal.\n 4\n\f Case: 16-70003 Document: 00515000359 Page: 5 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\npunishment phase, 16 and instructed Jones to simultaneously brief his appeal\nfrom the district court’s denial of investigative funding. 17\n We conclude that Jones is not entitled to relief on his Fifth Amendment\nclaim, and that the district court did not abuse its discretion in denying\ninvestigative funding. As a result, we do not address the Director’s argument\nthat the district court erred in equitably tolling the limitations period for\nJones’s federal petition. 18\n II\n We review a district court’s grant of summary judgment denying federal\nhabeas relief de novo. 19 Under AEDPA, we evaluate claims decided on the\nmerits by the state court for whether they were “contrary to, or involved an\nunreasonable application of, clearly established Federal law,” or whether they\n“resulted in a decision that was based on an unreasonable determination of the\nfacts in light of the evidence presented in the State court proceeding.” 20 A\ndecision is “contrary to” such clearly established federal law if it either “applies\na rule that contradicts the governing law set forth” in the Supreme Court’s\nholdings or “confronts a set of facts that are materially indistinguishable from\na decision of [the Supreme Court] and nevertheless arrives at a result different\n\n\n\n\n 16 Jones v. Davis, 673 F. App’x 369, 376 (5th Cir. 2016) (per curiam). The Supreme\nCourt denied certiorari on the claim for which we declined to grant Jones a COA. Jones v.\nDavis, 137 S. Ct. 2188 (2017).\n 17 A COA is not needed to appeal this issue, so when we granted Jones a COA on the\n\nMiranda issue, we instructed him to brief his § 3599 argument at the same time. Jones, 673\nF. App’x at 376.\n 18 See Garcia v. Quarterman, 454 F.3d 441, 444 n.5 (5th Cir. 2006) (“Because we deny\n\nthe habeas petition, we do not address the issue of tolling . . . .”); see also Holland v. Florida,\n560 U.S. 631, 645 (2010) (observing that AEDPA’s one-year limitations period is not\njurisdictional).\n 19 Whitaker v. Davis, 853 F.3d 253, 257 (5th Cir. 2017).\n 20 28 U.S.C. § 2254(d).\n\n 5\n\f Case: 16-70003 Document: 00515000359 Page: 6 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\nfrom [Supreme Court] precedent.” 21 A state court unreasonably applies such\nlaw when it “identifies the correct governing legal principle from [the Supreme]\nCourt’s decisions but unreasonably applies that principle to the facts of the\nprisoner’s case.” 22 In reviewing state court decisions, we bear in mind that\n“[s]ection 2254(d)(1) provides a remedy for instances in which a state court\nunreasonably applies [the Supreme] Court’s precedent; it does not require\nstate courts to extend that precedent or license federal courts to treat the\nfailure to do so as error.” 23\n As we have explained, Jones was prosecuted solely for the capital murder\nof his aunt, but evidence was admitted at the punishment phase as to his role\nin the murders of Peoples and Sanders. That evidence included a written\nconfession that Jones gave to authorities where he was only informed of his\nrights immediately before signing the confession. The Texas Court of Criminal\nAppeals held on direct appeal that the confession was taken in contravention\nof Miranda v. Arizona, but that its admission was harmless error under the\nSupreme Court’s decision in Chapman v. California. 24 Jones argues that this\nwas contrary to clearly established law because a confession to murder can\nnever be harmless, and that at a minimum, the state court unreasonably\napplied the Chapman standard for harmless error.\n A\n First, Jones argues that the Texas Court of Criminal Appeals’\nharmlessness determination was contrary to clearly established federal law\nbecause Miranda violations should not be subject to harmless-error analysis.\n\n\n\n 21 Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The governing Supreme Court\nprecedent must have been clearly established at the time of the state court’s adjudication.\nSee, e.g., White v. Woodall, 572 U.S. 415, 419–20 (2014).\n 22 Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).\n 23 White, 572 U.S. at 426 (emphasis omitted).\n 24 Jones, 119 S.W.3d at 770–83.\n\n 6\n\f Case: 16-70003 Document: 00515000359 Page: 7 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\nHe relies heavily on Justice White’s opinion—joined by Justices Marshall,\nBlackmun, and Stevens—in Arizona v. Fulminante, which he characterizes as\na plurality holding that Miranda violations are not subject to harmless error\nanalysis. 25 There are several reasons why the state court’s consideration of\nharmless error was not contrary to clearly established federal law. Most\nplainly, Fulminante addressed coerced confessions, not confessions taken in\nviolation of Miranda. 26 And the Fulminante “plurality” Jones cites was in fact\na dissent on the precise point at issue—Justice White explicitly acknowledged\nin the relevant section of the opinion that “five Justices have determined that\nharmless-error analysis applies to coerced confessions,” and that portion was\nlabeled as a dissent. 27 Other courts and treatises therefore correctly treat\nFulminante as holding that the admission of a coerced confession is “trial\nerror” subject to harmless-error analysis, as opposed to “structural error” not\nsubject to such analysis. 28 In sum, no Supreme Court precedent holds that\nMiranda violations are not subject to harmless-error analysis, and the Court\nof Criminal Appeals’ decision to apply harmless-error analysis did not conflict\nwith clearly established federal law.\n B\n Second, Jones argues that the Court of Criminal Appeals unreasonably\napplied Chapman in concluding that the admission of the confession was\nharmless beyond a reasonable doubt. 29 We disagree, mindful of the Chapman\n\n\n\n 25 499 U.S. 279 (1991).\n 26 Id. at 287–88. Jones shifts his characterization of the confession over the course of\nhis briefing from having been taken in violation of Miranda to having been coerced. But he\npresents no argument that the confession was coerced, and no Texas court evaluated such a\nclaim.\n 27 Fulminante, 499 U.S. at 282, 288, 295.\n 28 See, e.g., 3B Fed. Prac. & Proc. Crim. § 855 (4th ed.).\n 29 Chapman requires a court to declare an error harmless beyond a reasonable doubt\n\nto excuse it as harmless error. Chapman v. California, 386 U.S. 18, 24 (1967).\n 7\n\f Case: 16-70003 Document: 00515000359 Page: 8 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\ninquiry’s fact-sensitive nature and the sizable deference we must accord a state\ncourt determination on the merits under AEDPA. The Court of Criminal\nAppeals concluded on direct appeal that given the other evidence introduced\nat the punishment stage, Jones’s confession to the Sanders and Peoples\nmurders did not impact—beyond a reasonable doubt—the jury’s answer to the\nspecial issues of whether Jones was likely to commit future acts of violence and\nwhether there were sufficient mitigating circumstances. 30 The jury was\npresented with extensive evidence that Jones murdered Peoples and Sanders.\nOn cross-examination, Jones’s sister testified that Jones had told her about the\nmurders in detail that substantially mirrored what Jones included in his\nwritten confession. 31 An expert for the State also testified that when he\ninterviewed Jones, Jones blamed his alter ego James for Bryant’s death\nbecause he “wouldn’t have killed his aunt if Red hadn’t made him help kill\nSanders and Peoples.” 32 Jones’s written statement confessing to the murders\nof Peoples and Sanders introduced some details that did not come out through\nother testimony at trial—most significantly, Jones’s statement indicated that\nhe and Roosa initially targeted Peoples because Roosa asked him if he knew\nanyone with money. 33 All told, however, the Court of Criminal Appeals\ndetermined that Jones’s participation in the murders and details of the\nmurders were “well established through other witnesses and evidence.” 34 Jones\ndid not dispute at trial or on appeal that he participated in the murders. 35\n\n\n 30 Jones, 119 S.W.3d at 777–83. Two judges dissented, writing that they “[w]ould not\nconclude, beyond a reasonable doubt, that the constitutional violation in admitting [Jones’s]\nconfessions to two additional murders at the punishment stage did not contribute to the jury’s\nverdict for capital punishment,” and would remand for a new trial on punishment.” Id. at\n803–04 (Womack, J., dissenting).\n 31 Id. at 779–80 (majority opinion).\n 32 Id. at 780.\n 33 Id. at 782, 792.\n 34 Id. at 780.\n 35 Id. at 782.\n\n 8\n\f Case: 16-70003 Document: 00515000359 Page: 9 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\n The Court of Criminal Appeals also noted the extensive evidence of\nJones’s future dangerousness extending beyond the Sanders and Peoples\nmurders: he brutally beat his aunt to death to steal money for drugs; had been\nconvicted of several juvenile offenses, including for assaulting two teachers,\npossessing a handgun, and setting fire to another student’s hair; and was a\nmember of a gang. 36 In sum, it found that the written statement “did not carry\nthe weight a confession might normally bear in light of the volume and weight\nof the other evidence . . . on the future dangerousness issue.” 37 While it\nconcluded that the prosecution’s reference to the written confession in its\nclosing argument was “somewhat troubling”—the prosecutor suggested that\nJones was aware that Red was planning to kill Peoples because “it beg[an]”\nwhen Red asked Jones if he knew anyone with money—the court concluded\nthat this reference did not play a significant role beyond “rhetorical flourish”\nin responding to the defense theory. 38 As a result, it found that “beyond a\nreasonable doubt . . . the erroneous admission of the [written] statement did\nnot materially contribute to the jury’s finding that there is a probability that\n[Jones] would commit criminal acts of violence that would constitute a\ncontinuing threat to society.” 39\n As for the mitigation special issue, the court concluded that Jones’s\nwritten confession to the Sanders and Peoples murders essentially emphasized\nthat Jones was following Red’s instructions—reinforcing “the basic defensive\ntheory at the punishment stage that it was Red’s bad influence that set\nappellant down the path toward his alter ego’s murder of his aunt.” 40 The\nconfession “by no means belittled [Jones’s] overall mitigation case”—which\n\n\n 36 Id. at 780–81.\n 37 Id. at 780.\n 38 Id. at 782.\n 39 Id. at 783.\n 40 Id. at 781.\n\n 9\n\f Case: 16-70003 Document: 00515000359 Page: 10 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\nrested on evidence of Jones’s dissociative mental disorder. 41 These\nobservations led the court to hold that “had the [written] statement not been\nerroneously admitted into evidence, there is no reasonable likelihood that the\njury might have returned an affirmative answer to the mitigation special\nissue.” 42\n The CCA’s decision on direct appeal, approved of in Jones’s post-\nconviction proceedings, did not unreasonably apply Chapman. The court\nrecognized and accounted for the significant impact that a defendant’s\nconfession has on a jury, and concluded that given the particularities of this\ntrial record, it was confident beyond a reasonable doubt that the admission of\nthe written confession did not affect the jury’s answers to the special issues.\nCrucially, Jones never contested that he committed the murders described in\nthe confession, and the information he provided in the confession was largely\npresented to the jury through other admissible avenues. Under our deferential\nreview of the state court determination, we cannot disturb its conclusion. 43\n III\n We turn to Jones’s argument that the district court improperly denied\nhim investigative funding under 18 U.S.C. § 3599(f). Section 3599(f) allows a\ncourt to authorize funding for “investigative, expert, or other services” that are\n“reasonably necessary for the representation of the defendant, whether in\nconnection with issues relating to guilt or the sentence.” We review a district\n\n\n\n 41 Id. at 782.\n 42 Id. at 783.\n 43 To the extent that Jones argues that the confession in violation of Miranda led him\n\nto make other confessions to people who later testified at his trial, and that those confessions\nwere “fruit of the poisonous tree,” this misapprehends the sweep of the evidence against him,\nas well as the Supreme Court’s statements on the matter. See United States v. Patane, 542\nU.S. 630, 639 (2004) (explaining that “the Miranda rule ‘does not require that the [otherwise\nvoluntary] statements [taken without complying with the rule] and their fruits be discarded\nas inherently tainted’” (quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)).\n 10\n\f Case: 16-70003 Document: 00515000359 Page: 11 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\ncourt’s denial of funding under this section for abuse of discretion. 44 The\ndistrict court did not abuse its discretion here.\n In Ayestas v. Davis, the Supreme Court rejected our prior “substantial\nneed” standard for reviewing challenges to denials of § 3599 funding. It held\nthat the “substantial need” requirement was more demanding than the\nstatute’s requirement that the services sought be “reasonably necessary” to a\ndefendant’s post-conviction challenge. 45 It also made clear, however, that “[a]\nnatural consideration informing the exercise of [the district court’s] discretion\nis the likelihood that the contemplated services will help the applicant win\nrelief.” 46 Therefore, “[p]roper application of the ‘reasonably necessary’ standard\nthus requires courts to consider the potential merits of the claims that the\napplicant wants to pursue, the likelihood that the services will generate useful\nand admissible evidence, and the prospect that the applicant will be able to\nclear any procedural hurdles standing in the way.” 47\n Jones sought investigative funding to develop a potential claim under\nWiggins v. Smith 48 that his trial counsel was ineffective for failing to\nsufficiently investigate and present mitigation evidence about Jones’s social\nhistory, including his mental health, abusive childhood, and history of\nsubstance addiction. 49 The district court, writing before the Supreme Court\ndecided Ayestas, offered several reasons for denying Jones § 3599 funding. It\n\n\n\n 44 See Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).\n 45 Id. at 1092–93.\n 46 Id. at 1094 (“After all, the proposed services must be ‘reasonably necessary’ for the\n\napplicant’s representation, and it would not be reasonable—in fact, it would be quite\nunreasonable—to think that services are necessary to the applicant’s representation if,\nrealistically speaking, they stand little hope of helping him win relief.”).\n 47 Id.\n 48 539 U.S. 510 (2003).\n 49 The funding would also partially contribute to investigating Jones’s state habeas\n\ncounsel’s ineffectiveness, which would help combat the procedural default of his ineffective-\nassistance-of-trial-counsel claim.\n 11\n\f Case: 16-70003 Document: 00515000359 Page: 12 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\nobserved that “there is no question that [Jones’s new federal habeas] counsel\npreviously investigated, prepared, and was compensated for an amended\npetition containing substantially the same issues for which she now seeks\nfunding.” And it found that Jones had not demonstrated “reasonable necessity”\nfor a 400-hour investigation costing $30,000, because Jones had failed to\ndemonstrate sufficient likelihood that his trial defense team inadequately\ninvestigated the claims. Most clearly, Jones failed to address the testimony\nprovided by the defense’s mental health experts at trial—one of whom had\ninterviewed Jones’s family members and looked at relevant school, hospital,\nand police records, and the other of whom submitted a report addressing\nJones’s history of drug and alcohol abuse and other factors in his history\ncontributing to emotional disturbance. 50 Even though Jones identified “red\nflags” involving alcohol and substance addiction and childhood physical and\nsexual abuse, the district court concluded that he had not shown that he was\nlikely to uncover anything beyond what his experts had already addressed:\n“[t]he funding statute is not designed to provide petitioner with unlimited\nresources to investigate speculative claims.” 51 This was especially so where\nJones sought services in excess of $7,500 and therefore needed to show that\nexcess funding was “necessary to provide fair compensation for services of an\nunusual character or duration,” 52 but wholly failed to address this\nrequirement.\n\n\n\n 50 Jones argued that his trial investigator spent inadequate time investigating\npotential mitigation evidence and witnesses. He did not address the fact that his experts\nevidently reviewed and cited evidence on the precise issues he sought funding to investigate,\nor offer insight into why he viewed that investigation as deficient.\n 51 While the district court acknowledged that a petitioner may be entitled to funding\n\nto investigate unexhausted claims of trial counsel ineffectiveness—on the premise that state\nhabeas counsel was also ineffective—the court concluded that Jones had not demonstrated\nthat he was likely to uncover further evidence.\n 52 18 U.S.C. § 3599(g)(2).\n\n 12\n\f Case: 16-70003 Document: 00515000359 Page: 13 Date Filed: 06/18/2019\n\n\n\n No. 16-70003\n Although the district court denied funding before the Supreme Court’s\ndecision in Ayestas, the denial did not hinge on our now-rejected requirement\nthat Jones show “substantial need” for the funding. Instead, it viewed Jones’s\nrequest for additional funding as effectively seeking a full retrial of the issues\nalready litigated in the state court. Ayestas did not disturb the long-settled\nprinciple that district courts have discretion to separate “fishing expedition[s]”\nfrom requests for funding to support plausible defenses. 53 Because “the reasons\nthe district court gave for its ruling remain sound after Ayestas,” 54 we conclude\nthat remand is unnecessary and affirm the denial of funding.\n IV\n We affirm the judgment of the district court.\n\n\n\n\n 53 See Ayestas, 138 S. Ct. at 1094–95.\n 54 Mamou v. Davis, 742 F. App’x 820, 824 (5th Cir. 2018) (affirming denial of funding\nwithout remand where the district court found that the petitioner had failed to provide\n“sufficient detail” about the bases of his underlying ineffective assistance of counsel claim);\nsee Ochoa v. Davis, 750 F. App’x 365, 372–73 (5th Cir. 2018) (per curiam) (affirming denial\nof funding without remand where the petitioner “ha[d] not explained how further\ninvestigation would yield evidence that is different from what was available at the time of\nhis trial” and was instead “simply seeking to ‘turn over every stone’”).\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Quintin Phillippe JONES, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-70003 Document: 00515000359 Page: 1 Date Filed: 06/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-70003 June 18, 2019\\n Lyle W. Cayce\\n Clerk\\nQUINTIN PHILLIPPE JONES,\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n ON PETITION FOR REHEARING AND REHEARING EN BANC\\nBefore HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n Treating the respondent-appellee’s petition for rehearing en banc as a\\npetition for panel rehearing, the petition is granted. We withdraw our prior\\nopinion 1 and substitute the following. We deny the petitioner-appellant’s\\npetition for panel rehearing.\\n Quintin Phillippe Jones was sentenced to death by a Texas court. He now\\nappeals the district court’s denial of his federal application for post-conviction\\n\\n\\n\\n 1 Jones v. Davis, 922 F.3d 271 (5th Cir. 2019).\\n\\f Case: 16-70003 Document: 00515000359 Page: 2 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nrelief, arguing that evidence was erroneously admitted at sentencing in\\nviolation of his Fifth Amendment rights and that the district court improperly\\ndenied him further investigative funding. We granted a certificate of\\nappealability, and now affirm the district court’s judgment and denial of\\nfunding.\\n I\\n Jones beat his eighty-three-year-old great aunt, Berthena Bryant, to\\ndeath with a baseball bat after she refused to continue lending him money. 2\\nFort Worth police arrested him the next day for outstanding traffic warrants\\nand possession of a controlled substance. They interviewed him twice about\\nBryant’s murder. 3 The first time, Jones denied involvement. The second time,\\nhe waived his Miranda rights and confessed to the murder—explaining that\\nhe had an alter ego named James who lived in his head and who was\\nresponsible for killing Bryant. 4\\n Based on a lead from Jones’s sister, the police also investigated Jones’s\\ninvolvement in the murders of Marc Sanders and Clark Peoples. 5 Nine days\\nafter Jones confessed to killing Bryant, a Texas Ranger and sheriff’s deputy\\ninterrogated Jones about the Sanders and Peoples murders. 6 Jones told them\\nthat he murdered Sanders and Peoples with his close friend Ricky “Red” Roosa.\\nHe described how Roosa was the primary decision-maker and directed Jones\\nto take steps like restraining the victims and disposing of their bodies. 7\\nAuthorities only informed Jones of his Miranda rights after this statement was\\n\\n\\n\\n\\n 2 Jones v. State, 119 S.W.3d 766, 770–71 (Tex. Crim. App. 2003).\\n 3 Id. at 771.\\n 4 Id.\\n 5 Id.\\n 6 Id.\\n 7 Id. at 781, 792–94.\\n\\n 2\\n\\f Case: 16-70003 Document: 00515000359 Page: 3 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nwritten down and he was about to sign; he proceeded to sign it. 8 While Jones\\nwas only tried for Bryant’s murder and this written statement was not\\nintroduced at the guilt phase of his trial, it was introduced in the punishment\\nphase.\\n A Texas jury convicted Jones of capital murder. At the punishment phase\\nof his trial, the jury was asked to answer Texas’s two special issues: “1) would\\nappellant probably commit future criminal acts of violence that would\\nconstitute a continuing threat to society; and 2) whether, taking into\\nconsideration all of the evidence, there are sufficient mitigating circumstances\\nto warrant a life sentence rather than a death sentence.” 9 Based on the jury’s\\nfindings that Jones was likely to commit future acts of violence and that there\\nwere insufficient mitigating circumstances to warrant a life sentence, the trial\\ncourt sentenced Jones to death. 10 The Texas Court of Criminal Appeals, or\\nCCA, affirmed his conviction and sentence, 11 and the United States Supreme\\nCourt denied certiorari. 12 After allowing Jones multiple extensions of time to\\nfile his state habeas petition, the CCA denied Jones’s application in 2005. 13\\n Despite Jones’s persistent efforts to have substitute or additional counsel\\nappointed for his federal postconviction proceedings, the district court\\nappointed his state habeas attorney, Jack Strickland, in an order that also\\ndirected Jones to “timely file his federal petition for writ of habeas corpus” and\\nrequired “[t]he petition [to] demonstrate that it is timely filed under 28 U.S.C.\\n\\n\\n\\n\\n 8 Id. at 772.\\n 9 Id. at 777.\\n 10 Id. at 770.\\n 11 Id.\\n 12 Jones v. Texas, 542 U.S. 905 (2004).\\n 13 Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030, at *1 (Tex. Crim. App. Sept.\\n\\n14, 2005) (per curiam).\\n 3\\n\\f Case: 16-70003 Document: 00515000359 Page: 4 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\n§ 2244(d)(1).” Strickland miscalculated the filing deadline and filed Jones’s\\nfederal petition 149 days late. 14\\n After Strickland did not contest the dismissal of the petition before the\\ndistrict court or on appeal, 15 the district court appointed new counsel and\\nvacated its dismissal to give Jones a chance to respond. After an appeal and\\nremand concerning whether Jones was entitled to equitable tolling, the district\\ncourt initially found that no grounds existed for equitable tolling, then was\\npersuaded to reverse course after Jones moved for reconsideration.\\n Jones filed an amended petition adding claims for relief, and sought\\nadditional funding for investigative services. The district court denied Jones’s\\ninvestigative funding request, then denied each of Jones’s six claims for relief.\\nIt denied Jones a certificate of appealability on all claims. We granted Jones a\\ncertificate of appealability on his claim that the trial court violated his Fifth\\nAmendment rights by admitting an unmirandized confession at the\\n\\n\\n\\n\\n 14 While Strickland thought the deadline fell one year after the state court’s denial of\\nJones’s habeas petition, the correct deadline was one year after the denial of Jones’s petition\\nfor certiorari on direct appeal, with tolling for the pendency of the state habeas proceedings:\\nApril 18, 2006. See 28 U.S.C. § 2244(d). And, although the federal filing deadline was tolled\\nwhile Jones’s state habeas petition was under consideration, it was not tolled for the 149-day\\nperiod between when the Supreme Court denied certiorari on direct appeal and Jones filed\\nhis state petition. Jones’s federal petition was precisely 149 days late.\\n As the district court explained, this was not an inexplicable error. Typically, the\\ndeadline to file a post-conviction petition in Texas state court passes before the case is\\nfinalized on direct appeal. Where a petitioner files a state habeas application before the\\njudgment is finalized on direct review, the one-year federal limitations period is instantly\\ntolled when the direct appeal terminates, and only resumes when the state habeas\\nproceedings are finalized. Here, in contrast, the deadline for Jones’s state habeas petition\\nwas tolled because Jones received an extension allowing him to file the state petition after\\nthe Supreme Court denied certiorari on direct appeal.\\n 15 Strickland informed Jones that he was investigating options, but did not notice an\\n\\nappeal in this court or tell Jones that he was not filing an appeal.\\n 4\\n\\f Case: 16-70003 Document: 00515000359 Page: 5 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\npunishment phase, 16 and instructed Jones to simultaneously brief his appeal\\nfrom the district court’s denial of investigative funding. 17\\n We conclude that Jones is not entitled to relief on his Fifth Amendment\\nclaim, and that the district court did not abuse its discretion in denying\\ninvestigative funding. As a result, we do not address the Director’s argument\\nthat the district court erred in equitably tolling the limitations period for\\nJones’s federal petition. 18\\n II\\n We review a district court’s grant of summary judgment denying federal\\nhabeas relief de novo. 19 Under AEDPA, we evaluate claims decided on the\\nmerits by the state court for whether they were “contrary to, or involved an\\nunreasonable application of, clearly established Federal law,” or whether they\\n“resulted in a decision that was based on an unreasonable determination of the\\nfacts in light of the evidence presented in the State court proceeding.” 20 A\\ndecision is “contrary to” such clearly established federal law if it either “applies\\na rule that contradicts the governing law set forth” in the Supreme Court’s\\nholdings or “confronts a set of facts that are materially indistinguishable from\\na decision of [the Supreme Court] and nevertheless arrives at a result different\\n\\n\\n\\n\\n 16 Jones v. Davis, 673 F. App’x 369, 376 (5th Cir. 2016) (per curiam). The Supreme\\nCourt denied certiorari on the claim for which we declined to grant Jones a COA. Jones v.\\nDavis, 137 S. Ct. 2188 (2017).\\n 17 A COA is not needed to appeal this issue, so when we granted Jones a COA on the\\n\\nMiranda issue, we instructed him to brief his § 3599 argument at the same time. Jones, 673\\nF. App’x at 376.\\n 18 See Garcia v. Quarterman, 454 F.3d 441, 444 n.5 (5th Cir. 2006) (“Because we deny\\n\\nthe habeas petition, we do not address the issue of tolling . . . .”); see also Holland v. Florida,\\n560 U.S. 631, 645 (2010) (observing that AEDPA’s one-year limitations period is not\\njurisdictional).\\n 19 Whitaker v. Davis, 853 F.3d 253, 257 (5th Cir. 2017).\\n 20 28 U.S.C. § 2254(d).\\n\\n 5\\n\\f Case: 16-70003 Document: 00515000359 Page: 6 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nfrom [Supreme Court] precedent.” 21 A state court unreasonably applies such\\nlaw when it “identifies the correct governing legal principle from [the Supreme]\\nCourt’s decisions but unreasonably applies that principle to the facts of the\\nprisoner’s case.” 22 In reviewing state court decisions, we bear in mind that\\n“[s]ection 2254(d)(1) provides a remedy for instances in which a state court\\nunreasonably applies [the Supreme] Court’s precedent; it does not require\\nstate courts to extend that precedent or license federal courts to treat the\\nfailure to do so as error.” 23\\n As we have explained, Jones was prosecuted solely for the capital murder\\nof his aunt, but evidence was admitted at the punishment phase as to his role\\nin the murders of Peoples and Sanders. That evidence included a written\\nconfession that Jones gave to authorities where he was only informed of his\\nrights immediately before signing the confession. The Texas Court of Criminal\\nAppeals held on direct appeal that the confession was taken in contravention\\nof Miranda v. Arizona, but that its admission was harmless error under the\\nSupreme Court’s decision in Chapman v. California. 24 Jones argues that this\\nwas contrary to clearly established law because a confession to murder can\\nnever be harmless, and that at a minimum, the state court unreasonably\\napplied the Chapman standard for harmless error.\\n A\\n First, Jones argues that the Texas Court of Criminal Appeals’\\nharmlessness determination was contrary to clearly established federal law\\nbecause Miranda violations should not be subject to harmless-error analysis.\\n\\n\\n\\n 21 Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The governing Supreme Court\\nprecedent must have been clearly established at the time of the state court’s adjudication.\\nSee, e.g., White v. Woodall, 572 U.S. 415, 419–20 (2014).\\n 22 Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).\\n 23 White, 572 U.S. at 426 (emphasis omitted).\\n 24 Jones, 119 S.W.3d at 770–83.\\n\\n 6\\n\\f Case: 16-70003 Document: 00515000359 Page: 7 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nHe relies heavily on Justice White’s opinion—joined by Justices Marshall,\\nBlackmun, and Stevens—in Arizona v. Fulminante, which he characterizes as\\na plurality holding that Miranda violations are not subject to harmless error\\nanalysis. 25 There are several reasons why the state court’s consideration of\\nharmless error was not contrary to clearly established federal law. Most\\nplainly, Fulminante addressed coerced confessions, not confessions taken in\\nviolation of Miranda. 26 And the Fulminante “plurality” Jones cites was in fact\\na dissent on the precise point at issue—Justice White explicitly acknowledged\\nin the relevant section of the opinion that “five Justices have determined that\\nharmless-error analysis applies to coerced confessions,” and that portion was\\nlabeled as a dissent. 27 Other courts and treatises therefore correctly treat\\nFulminante as holding that the admission of a coerced confession is “trial\\nerror” subject to harmless-error analysis, as opposed to “structural error” not\\nsubject to such analysis. 28 In sum, no Supreme Court precedent holds that\\nMiranda violations are not subject to harmless-error analysis, and the Court\\nof Criminal Appeals’ decision to apply harmless-error analysis did not conflict\\nwith clearly established federal law.\\n B\\n Second, Jones argues that the Court of Criminal Appeals unreasonably\\napplied Chapman in concluding that the admission of the confession was\\nharmless beyond a reasonable doubt. 29 We disagree, mindful of the Chapman\\n\\n\\n\\n 25 499 U.S. 279 (1991).\\n 26 Id. at 287–88. Jones shifts his characterization of the confession over the course of\\nhis briefing from having been taken in violation of Miranda to having been coerced. But he\\npresents no argument that the confession was coerced, and no Texas court evaluated such a\\nclaim.\\n 27 Fulminante, 499 U.S. at 282, 288, 295.\\n 28 See, e.g., 3B Fed. Prac. & Proc. Crim. § 855 (4th ed.).\\n 29 Chapman requires a court to declare an error harmless beyond a reasonable doubt\\n\\nto excuse it as harmless error. Chapman v. California, 386 U.S. 18, 24 (1967).\\n 7\\n\\f Case: 16-70003 Document: 00515000359 Page: 8 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\ninquiry’s fact-sensitive nature and the sizable deference we must accord a state\\ncourt determination on the merits under AEDPA. The Court of Criminal\\nAppeals concluded on direct appeal that given the other evidence introduced\\nat the punishment stage, Jones’s confession to the Sanders and Peoples\\nmurders did not impact—beyond a reasonable doubt—the jury’s answer to the\\nspecial issues of whether Jones was likely to commit future acts of violence and\\nwhether there were sufficient mitigating circumstances. 30 The jury was\\npresented with extensive evidence that Jones murdered Peoples and Sanders.\\nOn cross-examination, Jones’s sister testified that Jones had told her about the\\nmurders in detail that substantially mirrored what Jones included in his\\nwritten confession. 31 An expert for the State also testified that when he\\ninterviewed Jones, Jones blamed his alter ego James for Bryant’s death\\nbecause he “wouldn’t have killed his aunt if Red hadn’t made him help kill\\nSanders and Peoples.” 32 Jones’s written statement confessing to the murders\\nof Peoples and Sanders introduced some details that did not come out through\\nother testimony at trial—most significantly, Jones’s statement indicated that\\nhe and Roosa initially targeted Peoples because Roosa asked him if he knew\\nanyone with money. 33 All told, however, the Court of Criminal Appeals\\ndetermined that Jones’s participation in the murders and details of the\\nmurders were “well established through other witnesses and evidence.” 34 Jones\\ndid not dispute at trial or on appeal that he participated in the murders. 35\\n\\n\\n 30 Jones, 119 S.W.3d at 777–83. Two judges dissented, writing that they “[w]ould not\\nconclude, beyond a reasonable doubt, that the constitutional violation in admitting [Jones’s]\\nconfessions to two additional murders at the punishment stage did not contribute to the jury’s\\nverdict for capital punishment,” and would remand for a new trial on punishment.” Id. at\\n803–04 (Womack, J., dissenting).\\n 31 Id. at 779–80 (majority opinion).\\n 32 Id. at 780.\\n 33 Id. at 782, 792.\\n 34 Id. at 780.\\n 35 Id. at 782.\\n\\n 8\\n\\f Case: 16-70003 Document: 00515000359 Page: 9 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\n The Court of Criminal Appeals also noted the extensive evidence of\\nJones’s future dangerousness extending beyond the Sanders and Peoples\\nmurders: he brutally beat his aunt to death to steal money for drugs; had been\\nconvicted of several juvenile offenses, including for assaulting two teachers,\\npossessing a handgun, and setting fire to another student’s hair; and was a\\nmember of a gang. 36 In sum, it found that the written statement “did not carry\\nthe weight a confession might normally bear in light of the volume and weight\\nof the other evidence . . . on the future dangerousness issue.” 37 While it\\nconcluded that the prosecution’s reference to the written confession in its\\nclosing argument was “somewhat troubling”—the prosecutor suggested that\\nJones was aware that Red was planning to kill Peoples because “it beg[an]”\\nwhen Red asked Jones if he knew anyone with money—the court concluded\\nthat this reference did not play a significant role beyond “rhetorical flourish”\\nin responding to the defense theory. 38 As a result, it found that “beyond a\\nreasonable doubt . . . the erroneous admission of the [written] statement did\\nnot materially contribute to the jury’s finding that there is a probability that\\n[Jones] would commit criminal acts of violence that would constitute a\\ncontinuing threat to society.” 39\\n As for the mitigation special issue, the court concluded that Jones’s\\nwritten confession to the Sanders and Peoples murders essentially emphasized\\nthat Jones was following Red’s instructions—reinforcing “the basic defensive\\ntheory at the punishment stage that it was Red’s bad influence that set\\nappellant down the path toward his alter ego’s murder of his aunt.” 40 The\\nconfession “by no means belittled [Jones’s] overall mitigation case”—which\\n\\n\\n 36 Id. at 780–81.\\n 37 Id. at 780.\\n 38 Id. at 782.\\n 39 Id. at 783.\\n 40 Id. at 781.\\n\\n 9\\n\\f Case: 16-70003 Document: 00515000359 Page: 10 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nrested on evidence of Jones’s dissociative mental disorder. 41 These\\nobservations led the court to hold that “had the [written] statement not been\\nerroneously admitted into evidence, there is no reasonable likelihood that the\\njury might have returned an affirmative answer to the mitigation special\\nissue.” 42\\n The CCA’s decision on direct appeal, approved of in Jones’s post-\\nconviction proceedings, did not unreasonably apply Chapman. The court\\nrecognized and accounted for the significant impact that a defendant’s\\nconfession has on a jury, and concluded that given the particularities of this\\ntrial record, it was confident beyond a reasonable doubt that the admission of\\nthe written confession did not affect the jury’s answers to the special issues.\\nCrucially, Jones never contested that he committed the murders described in\\nthe confession, and the information he provided in the confession was largely\\npresented to the jury through other admissible avenues. Under our deferential\\nreview of the state court determination, we cannot disturb its conclusion. 43\\n III\\n We turn to Jones’s argument that the district court improperly denied\\nhim investigative funding under 18 U.S.C. § 3599(f). Section 3599(f) allows a\\ncourt to authorize funding for “investigative, expert, or other services” that are\\n“reasonably necessary for the representation of the defendant, whether in\\nconnection with issues relating to guilt or the sentence.” We review a district\\n\\n\\n\\n 41 Id. at 782.\\n 42 Id. at 783.\\n 43 To the extent that Jones argues that the confession in violation of Miranda led him\\n\\nto make other confessions to people who later testified at his trial, and that those confessions\\nwere “fruit of the poisonous tree,” this misapprehends the sweep of the evidence against him,\\nas well as the Supreme Court’s statements on the matter. See United States v. Patane, 542\\nU.S. 630, 639 (2004) (explaining that “the Miranda rule ‘does not require that the [otherwise\\nvoluntary] statements [taken without complying with the rule] and their fruits be discarded\\nas inherently tainted’” (quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)).\\n 10\\n\\f Case: 16-70003 Document: 00515000359 Page: 11 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\ncourt’s denial of funding under this section for abuse of discretion. 44 The\\ndistrict court did not abuse its discretion here.\\n In Ayestas v. Davis, the Supreme Court rejected our prior “substantial\\nneed” standard for reviewing challenges to denials of § 3599 funding. It held\\nthat the “substantial need” requirement was more demanding than the\\nstatute’s requirement that the services sought be “reasonably necessary” to a\\ndefendant’s post-conviction challenge. 45 It also made clear, however, that “[a]\\nnatural consideration informing the exercise of [the district court’s] discretion\\nis the likelihood that the contemplated services will help the applicant win\\nrelief.” 46 Therefore, “[p]roper application of the ‘reasonably necessary’ standard\\nthus requires courts to consider the potential merits of the claims that the\\napplicant wants to pursue, the likelihood that the services will generate useful\\nand admissible evidence, and the prospect that the applicant will be able to\\nclear any procedural hurdles standing in the way.” 47\\n Jones sought investigative funding to develop a potential claim under\\nWiggins v. Smith 48 that his trial counsel was ineffective for failing to\\nsufficiently investigate and present mitigation evidence about Jones’s social\\nhistory, including his mental health, abusive childhood, and history of\\nsubstance addiction. 49 The district court, writing before the Supreme Court\\ndecided Ayestas, offered several reasons for denying Jones § 3599 funding. It\\n\\n\\n\\n 44 See Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).\\n 45 Id. at 1092–93.\\n 46 Id. at 1094 (“After all, the proposed services must be ‘reasonably necessary’ for the\\n\\napplicant’s representation, and it would not be reasonable—in fact, it would be quite\\nunreasonable—to think that services are necessary to the applicant’s representation if,\\nrealistically speaking, they stand little hope of helping him win relief.”).\\n 47 Id.\\n 48 539 U.S. 510 (2003).\\n 49 The funding would also partially contribute to investigating Jones’s state habeas\\n\\ncounsel’s ineffectiveness, which would help combat the procedural default of his ineffective-\\nassistance-of-trial-counsel claim.\\n 11\\n\\f Case: 16-70003 Document: 00515000359 Page: 12 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\nobserved that “there is no question that [Jones’s new federal habeas] counsel\\npreviously investigated, prepared, and was compensated for an amended\\npetition containing substantially the same issues for which she now seeks\\nfunding.” And it found that Jones had not demonstrated “reasonable necessity”\\nfor a 400-hour investigation costing $30,000, because Jones had failed to\\ndemonstrate sufficient likelihood that his trial defense team inadequately\\ninvestigated the claims. Most clearly, Jones failed to address the testimony\\nprovided by the defense’s mental health experts at trial—one of whom had\\ninterviewed Jones’s family members and looked at relevant school, hospital,\\nand police records, and the other of whom submitted a report addressing\\nJones’s history of drug and alcohol abuse and other factors in his history\\ncontributing to emotional disturbance. 50 Even though Jones identified “red\\nflags” involving alcohol and substance addiction and childhood physical and\\nsexual abuse, the district court concluded that he had not shown that he was\\nlikely to uncover anything beyond what his experts had already addressed:\\n“[t]he funding statute is not designed to provide petitioner with unlimited\\nresources to investigate speculative claims.” 51 This was especially so where\\nJones sought services in excess of $7,500 and therefore needed to show that\\nexcess funding was “necessary to provide fair compensation for services of an\\nunusual character or duration,” 52 but wholly failed to address this\\nrequirement.\\n\\n\\n\\n 50 Jones argued that his trial investigator spent inadequate time investigating\\npotential mitigation evidence and witnesses. He did not address the fact that his experts\\nevidently reviewed and cited evidence on the precise issues he sought funding to investigate,\\nor offer insight into why he viewed that investigation as deficient.\\n 51 While the district court acknowledged that a petitioner may be entitled to funding\\n\\nto investigate unexhausted claims of trial counsel ineffectiveness—on the premise that state\\nhabeas counsel was also ineffective—the court concluded that Jones had not demonstrated\\nthat he was likely to uncover further evidence.\\n 52 18 U.S.C. § 3599(g)(2).\\n\\n 12\\n\\f Case: 16-70003 Document: 00515000359 Page: 13 Date Filed: 06/18/2019\\n\\n\\n\\n No. 16-70003\\n Although the district court denied funding before the Supreme Court’s\\ndecision in Ayestas, the denial did not hinge on our now-rejected requirement\\nthat Jones show “substantial need” for the funding. Instead, it viewed Jones’s\\nrequest for additional funding as effectively seeking a full retrial of the issues\\nalready litigated in the state court. Ayestas did not disturb the long-settled\\nprinciple that district courts have discretion to separate “fishing expedition[s]”\\nfrom requests for funding to support plausible defenses. 53 Because “the reasons\\nthe district court gave for its ruling remain sound after Ayestas,” 54 we conclude\\nthat remand is unnecessary and affirm the denial of funding.\\n IV\\n We affirm the judgment of the district court.\\n\\n\\n\\n\\n 53 See Ayestas, 138 S. Ct. at 1094–95.\\n 54 Mamou v. Davis, 742 F. App’x 820, 824 (5th Cir. 2018) (affirming denial of funding\\nwithout remand where the district court found that the petitioner had failed to provide\\n“sufficient detail” about the bases of his underlying ineffective assistance of counsel claim);\\nsee Ochoa v. Davis, 750 F. App’x 365, 372–73 (5th Cir. 2018) (per curiam) (affirming denial\\nof funding without remand where the petitioner “ha[d] not explained how further\\ninvestigation would yield evidence that is different from what was available at the time of\\nhis trial” and was instead “simply seeking to ‘turn over every stone’”).\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2460,"cells":{"id":{"kind":"number","value":4630696,"string":"4,630,696"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Andrew Maxwell PARKER, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Andrew Parker"},"decision_date":{"kind":"string","value":"2019-06-18"},"docket_number":{"kind":"string","value":"18-50058"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HAYNES, GRAVES, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"HAYNES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50058 Document: 00515001333 Page: 1 Date Filed: 06/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-50058 June 18, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nANDREW MAXWELL PARKER,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nHAYNES, Circuit Judge:\\n Andrew Parker was convicted of an assortment of fraud crimes more\\nthan a decade ago. Since then, he has revisited our court at least ten times\\nthrough a combination of a direct appeal, appeals from 28 U.S.C. § 2255\\ndenials, requests for authorization to file successive § 2255 motions, and a\\npetition for writ of mandamus. Though the procedural vehicles have changed,\\nhis arguments have not, and we have repeatedly denied his requests for\\ncertificates of appealability (COA) and authorization to file successive § 2255\\nmotions.\\n Parker once again tried his luck with these arguments before the district\\ncourt, filing another motion under § 2255. The district court dismissed the\\n\\f Case: 18-50058 Document: 00515001333 Page: 2 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nmotion for lack of jurisdiction because Parker failed to receive authorization\\nfrom our court to file a successive petition under § 2255. Parker then requested\\nreconsideration, which the district court denied. He has now appealed,\\nimplicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal\\nfor lack of jurisdiction, and sanction him for appealing his collateral attack on\\nhis conviction.\\n But Parker has also appealed a new issue not foreclosed by his prior\\nefforts. In the district court, he challenged the amount of restitution he was\\nordered to pay. Parker argues that the victims of his crimes have recovered\\nsome of their damages through a civil judgment. The statutes governing\\nrestitution grant Parker the right to reduce his restitution order based on\\nsubsequent civil judgments. But Parker failed to present necessary evidence\\nto succeed on his claim. We thus AFFIRM the district court’s denial of his\\nrequest to quash the Government’s writ of execution. 1\\n I. Background\\n Andrew Parker used his company, San Antonio Trade Group, Inc.\\n(“SATG”), to defraud the Export-Import Bank of the United States (“Ex-Im\\nBank”). He collaborated with people in Mexico to seek loans from United\\nStates companies based on lies and forged documents. Ex-Im Bank insured\\nand guaranteed the loans. Once the loans were insured and guaranteed,\\nParker diverted millions of dollars in loan money to himself rather than for the\\nstated purposes. Along the way, he committed wire fraud, money laundering,\\ntax evasion, tax fraud, and conspiracy.\\n Eventually Parker was caught and pleaded guilty to those crimes under\\na written plea agreement. In accordance with the plea agreement, the district\\n\\n\\n\\n 1 Parker’s motion to determine jurisdiction in advance of appellate briefing is denied\\nas moot.\\n 2\\n\\f Case: 18-50058 Document: 00515001333 Page: 3 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\ncourt sentenced Parker to a term of imprisonment and supervised release and\\nordered Parker to pay $10 million in restitution.\\n Since then, Parker has doggedly tried to undo his conviction. Parker’s\\nfirst attack on his plea agreement and conviction came when he appealed his\\nconviction. See United States v. Parker, 372 F. App’x 558 (5th Cir. 2010) (per\\ncuriam). He argued that the indictment, plea agreement, and plea colloquy did\\nnot set out facts that proved he committed some of the alleged crimes. Id. at\\n560–62. We rejected his arguments and affirmed. Id. at 563.\\n Less than a year later, Parker filed his first § 2255 motion in April 2011.\\nHis arguments ranged wide, including many related to the arguments he\\nmakes in this appeal: the Government committed a Brady 2 violation or elicited\\nor permitted false evidence, and his counsel was ineffective by failing to\\nchallenge the wire fraud counts for lack of an interstate nexus. The district\\ncourt identified and rejected those arguments. 3 Parker sought reconsideration,\\nwhich was also denied. We denied Parker a COA, concluding that all\\nreasonable jurists would agree that the district court’s order was correct.\\n Between that motion and the motions leading to this appeal, Parker filed\\nnumerous other motions in the district court. The district court rejected all\\nthose motions on the grounds that they were unauthorized successive motions,\\nsee § 2255(h) (requiring a defendant who files a “second or successive motion”\\nto receive authorization to file it from the proper court of appeals in accordance\\nwith § 2244), or, to the extent they were not, they were barred by § 2255’s one-\\n\\n\\n\\n 2 Brady v. Maryland, 373 U.S. 83 (1963).\\n 3 The district court did accept Parker’s argument, with which the Government agreed,\\nthat his term of supervised release exceeded the statutory maximum. It amended his\\njudgment to reflect the statutory maximum. Though Parker appealed the amended judgment\\nthat incorporated this change, we stated that his arguments attacked the denial of the § 2255\\norder; we concluded the appeal from the amended judgment should be dismissed for lack of\\na COA and indicated Parker could seek one in the other appeal he had then filed.\\n 3\\n\\f Case: 18-50058 Document: 00515001333 Page: 4 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nyear period of limitations, see § 2255(f). Each time Parker appealed the district\\ncourt’s order, and each time we denied him a COA. The most recent time we\\naddressed one of Parker’s appeals, a judge of this court imposed sanctions on\\nhim for filing frivolous appeals.\\n While he filed district court motions, Parker also twice requested that\\nour court grant him authorization to file a successive motion. We denied\\nauthorization both times—once because Parker had not identified an exception\\nto the successive motion bar, see In re Parker, 575 F. App’x 415 (5th Cir. 2014),\\nand another time because the evidence he pointed to did not satisfy the “newly\\ndiscovered evidence” exception to that bar.\\n In all, we have addressed Parker’s case eight times: one affirmance on\\ndirect appeal, five denials of COAs, and two denials of requests for\\nauthorization to file a successive motion. 4\\n Undeterred, Parker tried again. After each of his previous attempts\\nfailed, Parker filed another motion under § 2255. The district court again\\ndismissed the motion as an unauthorized successive motion. Parker then\\nrequested reconsideration, which was denied. He then requested\\nreconsideration of the district court’s denial of reconsideration. The district\\ncourt again denied reconsideration. Parker appealed from the order denying\\nreconsideration of the order denying reconsideration of the § 2255 motion,\\nwhich we now call the Order Denying Reconsideration of Reconsideration of\\n§ 2255.\\n\\n\\n\\n\\n 4 We have also dismissed another appeal for failure to prosecute and denied a recently\\nfiled petition for writ of mandamus that covered the same district court actions that are now\\nthe subject of this appeal.\\n 4\\n\\f Case: 18-50058 Document: 00515001333 Page: 5 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\n While he re-pressed his § 2255 motion, Parker also filed a new type of\\nmotion. Parker, now released from prison, 5 moved to quash the Government’s\\nwrit of execution used to enforce the restitution order against him. Though the\\ntype of motion was new, the arguments mostly were not. They largely followed\\nthe exact same arguments made in Parker’s previously rejected § 2255\\nproceedings.\\n Parker did, however, make one new argument specific to the motion to\\nquash. He argued that the Government had collected money that had not been\\ncredited against the restitution order. The district court held a hearing on the\\nmotion to quash and permitted Parker to present evidence in support of his\\narguments. Parker presented evidence only about his argument that the\\ndistrict court lacked jurisdiction over him because there was no interstate wire\\ntransfer. He did not present any evidence that the Government had collected\\nmoney on his restitution order. Less than two weeks after the hearing, the\\ndistrict court denied Parker’s motion to quash.\\n Parker moved for reconsideration and later filed a supplement to the\\nmotion. The supplement focused heavily on his new argument, particularly\\nthat Ex-Im Bank had already recovered money that should be credited against\\nhis restitution. It identified an affidavit submitted with one of his previous\\n§ 2255 motions that stated that Ex-Im Bank had collected money from entities\\nrelated to his scheme. The district court denied the motion for reconsideration\\nand its supplement, orders which we collectively call the Orders Denying\\nQuash Reconsideration. Parker appealed the Orders Denying Quash\\nReconsideration, which we consolidated with his other appeal.\\n\\n\\n\\n\\n 5Parker is still on supervised release, so he is still “in custody” for purposes of § 2255.\\nSee United States v. Scruggs, 691 F.3d 660, 662 n.1 (5th Cir. 2012).\\n 5\\n\\f Case: 18-50058 Document: 00515001333 Page: 6 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\n II. Discussion\\n A. Collateral Attack on Conviction\\n We begin by dismissing for lack of jurisdiction Parker’s appeals to the\\nextent they challenge his previous conviction. Those aspects of his motions\\nshould be treated as motions for relief under § 2255, regardless of what they\\nare titled. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v.\\nHernandes, 708 F.3d 680, 681–82 (5th Cir. 2013). When a defendant appeals\\nsuch orders, he must first receive a COA. See 28 U.S.C. § 2253(c)(1)(B). The\\nabsence of a COA deprives this court of jurisdiction to address the merits of\\nthose arguments. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a\\nCOA has been issued federal courts of appeals lack jurisdiction to rule on the\\nmerits of appeals from habeas petitioners.”). To receive a COA, “a petitioner\\nmust show that reasonable jurists could debate whether (or, for that matter,\\nagree that) the petition should have been resolved in a different manner or that\\nthe issues presented were adequate to deserve encouragement to proceed\\nfurther.” Id. (brackets and internal quotation marks omitted) (quoting Slack\\nv. McDaniel, 529 U.S. 473, 484 (2000)).\\n Reasonable jurists would all agree that the district court lacked\\njurisdiction because Parker had not received authorization to file a successive\\n§ 2255 motion. Parker previously requested, and was denied, authorization to\\nfile a successive § 2255 motion making the same arguments he made below\\nand now makes on appeal. See In re Parker, No. 14-50911 (5th Cir. Nov. 10,\\n2014). In denying the motion for authorization, we concluded that “[a]ll of\\nParker’s complaints involve matters that could have and should have been\\nasserted on direct appeal or on appeal from the denial of the initial § 2255\\nmotion.” Id. We also concluded that he had not presented new evidence or\\nestablished an actual innocence exception to the successive § 2255 bar. See id.\\nDespite our denying authorization, Parker filed his motion anyway. The\\n 6\\n\\f Case: 18-50058 Document: 00515001333 Page: 7 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\ndistrict court was therefore correct to deny Parker’s § 2255 motion for want of\\njurisdiction. See 28 U.S.C. § 2255(h); Crone v. Cockrell, 324 F.3d 833, 836–38\\n(5th Cir. 2003) (holding that a district court lacks jurisdiction to address a\\nsuccessive motion without authorization from the court of appeals).\\n We have previously sanctioned Parker in the amount of $100 for\\npursuing frivolous litigation in our court. Because that has not dissuaded him\\nfrom further frivolous filings, we again sanction him. It is ORDERED that\\nParker pay $1,000 to the Clerk of this court, and he is BARRED from filing in\\nthis court or in any court subject to this court’s jurisdiction any challenge to\\nhis conviction or sentence until the sanction is paid in full unless he first\\nobtains leave of the court in which he seeks to file such a challenge. Parker is\\nWARNED again that filing any future frivolous, repetitive, or otherwise\\nabusive challenges to his conviction or sentence in this court or any court\\nsubject to this court’s jurisdiction will subject him to additional and\\nprogressively more severe sanctions.\\n B. Attack on Restitution Amount\\n Parker also appeals the district court’s denial of his request to quash a\\nwrit of execution against his property to collect the restitution he owes. He\\nargues two different theories for why he does not owe the restitution ordered.\\nWe first assure ourselves of jurisdiction to address the restitution aspects of\\nhis appeal and then explain why the district court did not err in rejecting both\\ntheories.\\n 1. Jurisdiction\\n Parker asserts that we have jurisdiction over the district court’s denial\\nof his writ of execution because it is an appeal from a “final decision[]” under\\n28 U.S.C. § 1291. We have previously said it is “close question” whether a\\ndefendant can appeal the denial of a motion to quash a writ of execution under\\n\\n\\n 7\\n\\f Case: 18-50058 Document: 00515001333 Page: 8 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\n§ 1291. See United States v. King, 123 F. App’x 144, 146 n.1 (5th Cir. 2004)\\n(per curiam). We now hold that such a denial is a final decision.\\n In prior times, we said that “the refusal to quash an execution is not a\\nfinal judgment.” Noojin v. United States, 164 F. 692, 693 (5th Cir. 1908) (per\\ncuriam) (citing, inter alia, Loeber v. Schrader, 149 U.S. 580, 585 (1893)). Other\\ncircuits have said the same thing. See United States v. Moore, 878 F.2d 331\\n(9th Cir. 1989) (per curiam); United States v. Stangland, 270 F.2d 893, 894 (7th\\nCir. 1959). But those cases were all decided prior to the Federal Debt\\nCollection Procedures Act of 1990, when the Government would have had to\\nexecute judgment in accordance with state law. See Seth S. Katz, Federal Debt\\nCollection Under the Federal Debt Collection Procedures Act: The Preemption\\nof State Real Estate Laws, 46 EMORY L.J. 1697, 1699 (1997). Obviously, those\\ncases could not and did not decide the question of whether writs of execution\\nissued under the Federal Debt Collection Procedures Act of 1990 are final\\norders. 6 See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.\\n2008) (explaining that the rule of orderliness prevents altering prior precedent\\nof our court “absent an intervening change in the law”). Given the change in\\nthe law evinced by the new statutory scheme as discussed below and\\n\\n\\n\\n\\n 6 Even if the order in this case was not a “final decision” under § 1291, we would then\\nconclude it is an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). That provision\\ngrants appellate jurisdiction over “[i]nterlocutory orders . . . granting, continuing, modifying,\\nrefusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.” Though the\\norder granting the writ of execution was not labeled an injunction, that does not matter. We\\nhave said that an order that “has ‘the practical effect’ of granting or denying an injunction”\\nmay be appealed under § 1292(a)(1). See United States v. Real Prop. Located at 1407 N.\\nCollins St., 901 F.3d 268, 272 (5th Cir. 2018) (quoting Abbott v. Perez, 138 S. Ct. 2305, 2319–\\n20 (2018)). We have found jurisdiction over other interlocutory orders that have a similar,\\nless burdensome effect on property seized by the Government. See 1407 N. Collins St., 901\\nF.3d at 271–73. Thus, in the alternative, we conclude the orders in this case are similarly\\nappealable under § 1292(a)(1).\\n 8\\n\\f Case: 18-50058 Document: 00515001333 Page: 9 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nconsidering the posture of Parker’s case, we conclude that the order denying\\nParker’s motion to quash the writ of execution is a final decision under § 1291.\\n A final decision is typically one that “ends the litigation on the merits\\nand leaves nothing for the court to do but execute the judgment.” Hall v. Hall,\\n138 S. Ct. 1118, 1123–24 (2018) (quoting Ray Haluch Gravel Co. v. Cent.\\nPension Fund of Operating Eng’rs and Participating Emp’rs, 571 U.S. 177, 183\\n(2014)). Parker’s motion to quash the writ of execution of the judgment,\\nthough, is litigation over the execution of the judgment. Courts generally view\\nsuch post-judgment motions “as a separate lawsuit from the action which\\nproduced the underlying judgment. Consequently, the requirements of finality\\nmust be met without reference to that underlying judgment.” In re Joint E. &\\nS. Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994); see also\\nStudiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 131 (5th\\nCir. 1983) (concluding that a post-judgment order awarding costs was not final\\nuntil the amount of costs was fixed). The dispositive question, then, is whether\\nthere is anything left for the district court to do with respect to execution of the\\njudgment after denial of Parker’s motion.\\n There is not. Under the Federal Debt Collection Procedures Act of 1990,\\nPub. L. No. 101–647, 104 Stat 4789 (1990), the Government can collect on\\njudgments in its favor through, among other things, a writ of execution. See\\n28 U.S.C. § 3203. The writ of execution allows a United States marshal to\\n“levy” 7 the defendant’s property to satisfy the judgment. See 28 U.S.C.\\n§ 3203(d) (specifying that writs of execution are levied under the same\\nprocedures as those for writs of attachment in 28 U.S.C. § 3102(d)); id.\\n§ 3102(d)(1) (authorizing the marshal to levy property). Once levied, the\\n\\n\\n\\n 7“Levy” generally means to “take or seize property in execution of a judgment.” Levy,\\nBLACK’S LAW DICTIONARY (10th ed. 2014).\\n 9\\n\\f Case: 18-50058 Document: 00515001333 Page: 10 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nproperty becomes the Government’s to sell to satisfy the defendant’s judgment.\\nSee 28 U.S.C. § 3203(g). Every writ of execution directs the marshal to not only\\nlevy but also to sell the property, subject to a few irrelevant exceptions. See 28\\nU.S.C. § 3203(c)(2)(B). The marshal may continue to use the same writ of\\nexecution to levy property until the judgment is satisfied. See 28 U.S.C.\\n§ 3203(h)(2). Thus, once a district court has issued a writ of execution, all that\\nremains is for a non-judicial officer to take and dispose of the defendant’s\\nproperty. The statutes do not grant Parker a right to challenge the writ of\\nexecution at any later point, and there is nothing left to be done after execution\\nis complete. The district court’s order is thus final, as two other circuits have\\nconcluded about similar orders. See United States v. Peters, 783 F.3d 1361,\\n1363 (11th Cir. 2015) (per curiam) (concluding that an order denying a\\ndefendant’s request to transfer to another court and granting the government’s\\napplication for a writ of execution was a final, appealable order); United States\\nv. Furkin, 165 F.3d 33 (7th Cir. 1998) (unpublished table decision) (holding\\nthat the court had jurisdiction over the district court’s approval of writs of\\nexecution).\\n 2. Merits\\n Parker makes two arguments about the merits of his restitution order,\\nneither of which succeed. Parker first argues that the restitution amount was\\nincorrect the day it was ordered. 8 But we have denied numerous attempts to\\ncollaterally attack a restitution order. 9 That is because once orders become\\n\\n\\n 8 Parker’s argument about the amount of restitution is not subject to the rules of\\n§ 2255 because we have previously concluded that “complaints concerning restitution may\\nnot be addressed in § 2255 proceedings.” United States v. Hatten, 167 F.3d 884, 887 (5th Cir.\\n1999) (noting that § 2255 challenges are limited to unlawful custody, not imposition of\\nmonetary penalties).\\n 9 See, e.g., United States v. Goyette, 446 F. App’x 718, 720–21 (5th Cir. 2011) (per\\ncuriam) (concluding that a defendant “cannot use this garnishment proceeding to collaterally\\nattack the amount of restitution ordered in his criminal case”); United States v. Miller, 599\\n 10\\n\\f Case: 18-50058 Document: 00515001333 Page: 11 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nfinal on direct review, “they became res judicata . . . , ‘not only as to every\\nmatter which was offered and received to sustain or defeat the claim or\\ndemand, but as to any other admissible matter which might have been offered\\nfor that purpose.’” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)\\n(quoting Nevada v. United States, 463 U.S. 110, 130 (1983)). Parker’s first\\nargument thus fails.\\n His second argument also fails but for a different reason. On appeal,\\nParker argues that Ex-Im Bank “had collected notes and civil judgments for\\nthe total loss for the victims named in his plea agreement.” 10 We agree that if\\nthis statement were proved to be true, Parker would have a valid argument.\\nThe statute governing Parker’s restitution states that his restitution amount\\n“shall be reduced by any amount later recovered as compensatory damages for\\nthe same loss by the victim in—(A) any Federal civil proceeding; and (B) any\\nState civil proceeding, to the extent provided by the law of the State.” 18 U.S.C.\\n§ 3664(j)(2). The use of the words “reduced” and “later recovered” indicates\\nthat Parker can make the argument as it applies to judgments recovered after\\nthe restitution order is final. So, unlike the collateral attack on the restitution\\n\\n\\n\\n\\nF.3d 484, 490 (5th Cir. 2010) (assuming that, if the writ of audita querela survives in criminal\\nproceedings, it only applies to a restitution order that, “though correct when rendered, has\\nsince become infirm”); Patel v. Mukasey, 526 F.3d 800, 804 (5th Cir. 2008) (concluding a\\ndefendant “cannot now collaterally attack the validity of his restitution order” because\\n“whether there was an actual loss sufficient to justify an order of restitution under 18 U.S.C.\\n§ 3664 is an issue that should have been raised and argued before the sentencing court”).\\nThe fact that Parker frames one of his arguments as an issue of subject matter jurisdiction\\ndoes not matter. See Kontrick v. Ryan, 540 U.S. 443, 455 & n.9 (2004) (noting that, although\\na litigant may raise an issue of subject matter jurisdiction at any time, “[e]ven subject-matter\\njurisdiction . . . may not be attacked collaterally”).\\n 10Parker argued below that he should receive credit against his restitution order for\\nother post-judgment developments, like restitution payments by a co-conspirator. He has not\\nbriefed any of those issues on appeal. “Failure to brief an issue on appeal constitutes waiver.”\\nLara v. Johnson, 141 F.3d 239, 242 n.3 (5th Cir.), reh’g granted, opinion modified, 149 F.3d\\n1226 (5th Cir. 1998).\\n 11\\n\\f Case: 18-50058 Document: 00515001333 Page: 12 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\norder’s calculations at the time of sentencing, Parker was permitted to make\\nthis argument post-judgment because, practically speaking, that is the only\\ntime he could have made that argument concerning payments allegedly made\\nafter the judgment was entered. 11\\n But even considering all the evidence Parker presented below, 12 Parker\\ndoes not meet the evidentiary requirements of § 3664(j)(2). We have held that\\nthe defendant bears the burden of proving an offset under § 3664(j)(2). See\\nUnited States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998). That burden\\nincludes proving the value of any alleged offset. Id. at 449–50. Parker never\\nidentified to the district court the amount that Ex-Im Bank allegedly recovered\\nafter the entry of his restitution order. His argument thus failed on that\\nground.\\n III. Conclusion\\n We DENY Parker a COA to appeal the district court’s dismissal of his\\nchallenges to his conviction. He is ORDERED to pay $1,000 to the Clerk of\\nthis court, and he is BARRED from filing in this court or in any court subject\\nto this court’s jurisdiction any challenge to his conviction or sentence until the\\nsanction is paid in full unless he first obtains leave of the court in which he\\nseeks to file such challenge. Parker is WARNED again that filing any future\\nfrivolous, repetitive, or otherwise abusive challenges to his conviction or\\n\\n\\n\\n\\n We assume without deciding that the vehicle through which he made this\\n 11\\n\\nargument—a motion to quash a writ of execution—was a proper vehicle.\\n 12 As noted above, Parker moved to quash the writ of execution. When it was denied,\\nhe moved for reconsideration of the motion, this time including more evidence in support of\\nhis argument. He appealed only the denial of reconsideration. We need not decide what legal\\nstandards would have governed the motion for reconsideration below or on appeal because\\neven if we consider all the evidence under a de novo standard of review, he still fails to make\\nout a claim.\\n 12\\n\\f Case: 18-50058 Document: 00515001333 Page: 13 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nsentence in this court or any court subject to this court’s jurisdiction will\\nsubject him to additional and progressively more severe sanctions.\\n We AFFIRM the district court’s Orders Denying Quash Reconsideration.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407949/\", \"author_raw\": \"HAYNES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HAYNES"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630696/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Andrew Maxwell PARKER, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50058 Document: 00515001333 Page: 1 Date Filed: 06/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-50058 June 18, 2019\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee\n\nv.\n\nANDREW MAXWELL PARKER,\n\n Defendant - Appellant\n\n\n\n\n Appeals from the United States District Court\n for the Western District of Texas\n\n\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\nHAYNES, Circuit Judge:\n Andrew Parker was convicted of an assortment of fraud crimes more\nthan a decade ago. Since then, he has revisited our court at least ten times\nthrough a combination of a direct appeal, appeals from 28 U.S.C. § 2255\ndenials, requests for authorization to file successive § 2255 motions, and a\npetition for writ of mandamus. Though the procedural vehicles have changed,\nhis arguments have not, and we have repeatedly denied his requests for\ncertificates of appealability (COA) and authorization to file successive § 2255\nmotions.\n Parker once again tried his luck with these arguments before the district\ncourt, filing another motion under § 2255. The district court dismissed the\n\f Case: 18-50058 Document: 00515001333 Page: 2 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\nmotion for lack of jurisdiction because Parker failed to receive authorization\nfrom our court to file a successive petition under § 2255. Parker then requested\nreconsideration, which the district court denied. He has now appealed,\nimplicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal\nfor lack of jurisdiction, and sanction him for appealing his collateral attack on\nhis conviction.\n But Parker has also appealed a new issue not foreclosed by his prior\nefforts. In the district court, he challenged the amount of restitution he was\nordered to pay. Parker argues that the victims of his crimes have recovered\nsome of their damages through a civil judgment. The statutes governing\nrestitution grant Parker the right to reduce his restitution order based on\nsubsequent civil judgments. But Parker failed to present necessary evidence\nto succeed on his claim. We thus AFFIRM the district court’s denial of his\nrequest to quash the Government’s writ of execution. 1\n I. Background\n Andrew Parker used his company, San Antonio Trade Group, Inc.\n(“SATG”), to defraud the Export-Import Bank of the United States (“Ex-Im\nBank”). He collaborated with people in Mexico to seek loans from United\nStates companies based on lies and forged documents. Ex-Im Bank insured\nand guaranteed the loans. Once the loans were insured and guaranteed,\nParker diverted millions of dollars in loan money to himself rather than for the\nstated purposes. Along the way, he committed wire fraud, money laundering,\ntax evasion, tax fraud, and conspiracy.\n Eventually Parker was caught and pleaded guilty to those crimes under\na written plea agreement. In accordance with the plea agreement, the district\n\n\n\n 1 Parker’s motion to determine jurisdiction in advance of appellate briefing is denied\nas moot.\n 2\n\f Case: 18-50058 Document: 00515001333 Page: 3 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\ncourt sentenced Parker to a term of imprisonment and supervised release and\nordered Parker to pay $10 million in restitution.\n Since then, Parker has doggedly tried to undo his conviction. Parker’s\nfirst attack on his plea agreement and conviction came when he appealed his\nconviction. See United States v. Parker, 372 F. App’x 558 (5th Cir. 2010) (per\ncuriam). He argued that the indictment, plea agreement, and plea colloquy did\nnot set out facts that proved he committed some of the alleged crimes. Id. at\n560–62. We rejected his arguments and affirmed. Id. at 563.\n Less than a year later, Parker filed his first § 2255 motion in April 2011.\nHis arguments ranged wide, including many related to the arguments he\nmakes in this appeal: the Government committed a Brady 2 violation or elicited\nor permitted false evidence, and his counsel was ineffective by failing to\nchallenge the wire fraud counts for lack of an interstate nexus. The district\ncourt identified and rejected those arguments. 3 Parker sought reconsideration,\nwhich was also denied. We denied Parker a COA, concluding that all\nreasonable jurists would agree that the district court’s order was correct.\n Between that motion and the motions leading to this appeal, Parker filed\nnumerous other motions in the district court. The district court rejected all\nthose motions on the grounds that they were unauthorized successive motions,\nsee § 2255(h) (requiring a defendant who files a “second or successive motion”\nto receive authorization to file it from the proper court of appeals in accordance\nwith § 2244), or, to the extent they were not, they were barred by § 2255’s one-\n\n\n\n 2 Brady v. Maryland, 373 U.S. 83 (1963).\n 3 The district court did accept Parker’s argument, with which the Government agreed,\nthat his term of supervised release exceeded the statutory maximum. It amended his\njudgment to reflect the statutory maximum. Though Parker appealed the amended judgment\nthat incorporated this change, we stated that his arguments attacked the denial of the § 2255\norder; we concluded the appeal from the amended judgment should be dismissed for lack of\na COA and indicated Parker could seek one in the other appeal he had then filed.\n 3\n\f Case: 18-50058 Document: 00515001333 Page: 4 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\nyear period of limitations, see § 2255(f). Each time Parker appealed the district\ncourt’s order, and each time we denied him a COA. The most recent time we\naddressed one of Parker’s appeals, a judge of this court imposed sanctions on\nhim for filing frivolous appeals.\n While he filed district court motions, Parker also twice requested that\nour court grant him authorization to file a successive motion. We denied\nauthorization both times—once because Parker had not identified an exception\nto the successive motion bar, see In re Parker, 575 F. App’x 415 (5th Cir. 2014),\nand another time because the evidence he pointed to did not satisfy the “newly\ndiscovered evidence” exception to that bar.\n In all, we have addressed Parker’s case eight times: one affirmance on\ndirect appeal, five denials of COAs, and two denials of requests for\nauthorization to file a successive motion. 4\n Undeterred, Parker tried again. After each of his previous attempts\nfailed, Parker filed another motion under § 2255. The district court again\ndismissed the motion as an unauthorized successive motion. Parker then\nrequested reconsideration, which was denied. He then requested\nreconsideration of the district court’s denial of reconsideration. The district\ncourt again denied reconsideration. Parker appealed from the order denying\nreconsideration of the order denying reconsideration of the § 2255 motion,\nwhich we now call the Order Denying Reconsideration of Reconsideration of\n§ 2255.\n\n\n\n\n 4 We have also dismissed another appeal for failure to prosecute and denied a recently\nfiled petition for writ of mandamus that covered the same district court actions that are now\nthe subject of this appeal.\n 4\n\f Case: 18-50058 Document: 00515001333 Page: 5 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\n While he re-pressed his § 2255 motion, Parker also filed a new type of\nmotion. Parker, now released from prison, 5 moved to quash the Government’s\nwrit of execution used to enforce the restitution order against him. Though the\ntype of motion was new, the arguments mostly were not. They largely followed\nthe exact same arguments made in Parker’s previously rejected § 2255\nproceedings.\n Parker did, however, make one new argument specific to the motion to\nquash. He argued that the Government had collected money that had not been\ncredited against the restitution order. The district court held a hearing on the\nmotion to quash and permitted Parker to present evidence in support of his\narguments. Parker presented evidence only about his argument that the\ndistrict court lacked jurisdiction over him because there was no interstate wire\ntransfer. He did not present any evidence that the Government had collected\nmoney on his restitution order. Less than two weeks after the hearing, the\ndistrict court denied Parker’s motion to quash.\n Parker moved for reconsideration and later filed a supplement to the\nmotion. The supplement focused heavily on his new argument, particularly\nthat Ex-Im Bank had already recovered money that should be credited against\nhis restitution. It identified an affidavit submitted with one of his previous\n§ 2255 motions that stated that Ex-Im Bank had collected money from entities\nrelated to his scheme. The district court denied the motion for reconsideration\nand its supplement, orders which we collectively call the Orders Denying\nQuash Reconsideration. Parker appealed the Orders Denying Quash\nReconsideration, which we consolidated with his other appeal.\n\n\n\n\n 5Parker is still on supervised release, so he is still “in custody” for purposes of § 2255.\nSee United States v. Scruggs, 691 F.3d 660, 662 n.1 (5th Cir. 2012).\n 5\n\f Case: 18-50058 Document: 00515001333 Page: 6 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\n II. Discussion\n A. Collateral Attack on Conviction\n We begin by dismissing for lack of jurisdiction Parker’s appeals to the\nextent they challenge his previous conviction. Those aspects of his motions\nshould be treated as motions for relief under § 2255, regardless of what they\nare titled. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v.\nHernandes, 708 F.3d 680, 681–82 (5th Cir. 2013). When a defendant appeals\nsuch orders, he must first receive a COA. See 28 U.S.C. § 2253(c)(1)(B). The\nabsence of a COA deprives this court of jurisdiction to address the merits of\nthose arguments. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a\nCOA has been issued federal courts of appeals lack jurisdiction to rule on the\nmerits of appeals from habeas petitioners.”). To receive a COA, “a petitioner\nmust show that reasonable jurists could debate whether (or, for that matter,\nagree that) the petition should have been resolved in a different manner or that\nthe issues presented were adequate to deserve encouragement to proceed\nfurther.” Id. (brackets and internal quotation marks omitted) (quoting Slack\nv. McDaniel, 529 U.S. 473, 484 (2000)).\n Reasonable jurists would all agree that the district court lacked\njurisdiction because Parker had not received authorization to file a successive\n§ 2255 motion. Parker previously requested, and was denied, authorization to\nfile a successive § 2255 motion making the same arguments he made below\nand now makes on appeal. See In re Parker, No. 14-50911 (5th Cir. Nov. 10,\n2014). In denying the motion for authorization, we concluded that “[a]ll of\nParker’s complaints involve matters that could have and should have been\nasserted on direct appeal or on appeal from the denial of the initial § 2255\nmotion.” Id. We also concluded that he had not presented new evidence or\nestablished an actual innocence exception to the successive § 2255 bar. See id.\nDespite our denying authorization, Parker filed his motion anyway. The\n 6\n\f Case: 18-50058 Document: 00515001333 Page: 7 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\ndistrict court was therefore correct to deny Parker’s § 2255 motion for want of\njurisdiction. See 28 U.S.C. § 2255(h); Crone v. Cockrell, 324 F.3d 833, 836–38\n(5th Cir. 2003) (holding that a district court lacks jurisdiction to address a\nsuccessive motion without authorization from the court of appeals).\n We have previously sanctioned Parker in the amount of $100 for\npursuing frivolous litigation in our court. Because that has not dissuaded him\nfrom further frivolous filings, we again sanction him. It is ORDERED that\nParker pay $1,000 to the Clerk of this court, and he is BARRED from filing in\nthis court or in any court subject to this court’s jurisdiction any challenge to\nhis conviction or sentence until the sanction is paid in full unless he first\nobtains leave of the court in which he seeks to file such a challenge. Parker is\nWARNED again that filing any future frivolous, repetitive, or otherwise\nabusive challenges to his conviction or sentence in this court or any court\nsubject to this court’s jurisdiction will subject him to additional and\nprogressively more severe sanctions.\n B. Attack on Restitution Amount\n Parker also appeals the district court’s denial of his request to quash a\nwrit of execution against his property to collect the restitution he owes. He\nargues two different theories for why he does not owe the restitution ordered.\nWe first assure ourselves of jurisdiction to address the restitution aspects of\nhis appeal and then explain why the district court did not err in rejecting both\ntheories.\n 1. Jurisdiction\n Parker asserts that we have jurisdiction over the district court’s denial\nof his writ of execution because it is an appeal from a “final decision[]” under\n28 U.S.C. § 1291. We have previously said it is “close question” whether a\ndefendant can appeal the denial of a motion to quash a writ of execution under\n\n\n 7\n\f Case: 18-50058 Document: 00515001333 Page: 8 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\n§ 1291. See United States v. King, 123 F. App’x 144, 146 n.1 (5th Cir. 2004)\n(per curiam). We now hold that such a denial is a final decision.\n In prior times, we said that “the refusal to quash an execution is not a\nfinal judgment.” Noojin v. United States, 164 F. 692, 693 (5th Cir. 1908) (per\ncuriam) (citing, inter alia, Loeber v. Schrader, 149 U.S. 580, 585 (1893)). Other\ncircuits have said the same thing. See United States v. Moore, 878 F.2d 331\n(9th Cir. 1989) (per curiam); United States v. Stangland, 270 F.2d 893, 894 (7th\nCir. 1959). But those cases were all decided prior to the Federal Debt\nCollection Procedures Act of 1990, when the Government would have had to\nexecute judgment in accordance with state law. See Seth S. Katz, Federal Debt\nCollection Under the Federal Debt Collection Procedures Act: The Preemption\nof State Real Estate Laws, 46 EMORY L.J. 1697, 1699 (1997). Obviously, those\ncases could not and did not decide the question of whether writs of execution\nissued under the Federal Debt Collection Procedures Act of 1990 are final\norders. 6 See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.\n2008) (explaining that the rule of orderliness prevents altering prior precedent\nof our court “absent an intervening change in the law”). Given the change in\nthe law evinced by the new statutory scheme as discussed below and\n\n\n\n\n 6 Even if the order in this case was not a “final decision” under § 1291, we would then\nconclude it is an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). That provision\ngrants appellate jurisdiction over “[i]nterlocutory orders . . . granting, continuing, modifying,\nrefusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.” Though the\norder granting the writ of execution was not labeled an injunction, that does not matter. We\nhave said that an order that “has ‘the practical effect’ of granting or denying an injunction”\nmay be appealed under § 1292(a)(1). See United States v. Real Prop. Located at 1407 N.\nCollins St., 901 F.3d 268, 272 (5th Cir. 2018) (quoting Abbott v. Perez, 138 S. Ct. 2305, 2319–\n20 (2018)). We have found jurisdiction over other interlocutory orders that have a similar,\nless burdensome effect on property seized by the Government. See 1407 N. Collins St., 901\nF.3d at 271–73. Thus, in the alternative, we conclude the orders in this case are similarly\nappealable under § 1292(a)(1).\n 8\n\f Case: 18-50058 Document: 00515001333 Page: 9 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\nconsidering the posture of Parker’s case, we conclude that the order denying\nParker’s motion to quash the writ of execution is a final decision under § 1291.\n A final decision is typically one that “ends the litigation on the merits\nand leaves nothing for the court to do but execute the judgment.” Hall v. Hall,\n138 S. Ct. 1118, 1123–24 (2018) (quoting Ray Haluch Gravel Co. v. Cent.\nPension Fund of Operating Eng’rs and Participating Emp’rs, 571 U.S. 177, 183\n(2014)). Parker’s motion to quash the writ of execution of the judgment,\nthough, is litigation over the execution of the judgment. Courts generally view\nsuch post-judgment motions “as a separate lawsuit from the action which\nproduced the underlying judgment. Consequently, the requirements of finality\nmust be met without reference to that underlying judgment.” In re Joint E. &\nS. Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994); see also\nStudiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 131 (5th\nCir. 1983) (concluding that a post-judgment order awarding costs was not final\nuntil the amount of costs was fixed). The dispositive question, then, is whether\nthere is anything left for the district court to do with respect to execution of the\njudgment after denial of Parker’s motion.\n There is not. Under the Federal Debt Collection Procedures Act of 1990,\nPub. L. No. 101–647, 104 Stat 4789 (1990), the Government can collect on\njudgments in its favor through, among other things, a writ of execution. See\n28 U.S.C. § 3203. The writ of execution allows a United States marshal to\n“levy” 7 the defendant’s property to satisfy the judgment. See 28 U.S.C.\n§ 3203(d) (specifying that writs of execution are levied under the same\nprocedures as those for writs of attachment in 28 U.S.C. § 3102(d)); id.\n§ 3102(d)(1) (authorizing the marshal to levy property). Once levied, the\n\n\n\n 7“Levy” generally means to “take or seize property in execution of a judgment.” Levy,\nBLACK’S LAW DICTIONARY (10th ed. 2014).\n 9\n\f Case: 18-50058 Document: 00515001333 Page: 10 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\nproperty becomes the Government’s to sell to satisfy the defendant’s judgment.\nSee 28 U.S.C. § 3203(g). Every writ of execution directs the marshal to not only\nlevy but also to sell the property, subject to a few irrelevant exceptions. See 28\nU.S.C. § 3203(c)(2)(B). The marshal may continue to use the same writ of\nexecution to levy property until the judgment is satisfied. See 28 U.S.C.\n§ 3203(h)(2). Thus, once a district court has issued a writ of execution, all that\nremains is for a non-judicial officer to take and dispose of the defendant’s\nproperty. The statutes do not grant Parker a right to challenge the writ of\nexecution at any later point, and there is nothing left to be done after execution\nis complete. The district court’s order is thus final, as two other circuits have\nconcluded about similar orders. See United States v. Peters, 783 F.3d 1361,\n1363 (11th Cir. 2015) (per curiam) (concluding that an order denying a\ndefendant’s request to transfer to another court and granting the government’s\napplication for a writ of execution was a final, appealable order); United States\nv. Furkin, 165 F.3d 33 (7th Cir. 1998) (unpublished table decision) (holding\nthat the court had jurisdiction over the district court’s approval of writs of\nexecution).\n 2. Merits\n Parker makes two arguments about the merits of his restitution order,\nneither of which succeed. Parker first argues that the restitution amount was\nincorrect the day it was ordered. 8 But we have denied numerous attempts to\ncollaterally attack a restitution order. 9 That is because once orders become\n\n\n 8 Parker’s argument about the amount of restitution is not subject to the rules of\n§ 2255 because we have previously concluded that “complaints concerning restitution may\nnot be addressed in § 2255 proceedings.” United States v. Hatten, 167 F.3d 884, 887 (5th Cir.\n1999) (noting that § 2255 challenges are limited to unlawful custody, not imposition of\nmonetary penalties).\n 9 See, e.g., United States v. Goyette, 446 F. App’x 718, 720–21 (5th Cir. 2011) (per\ncuriam) (concluding that a defendant “cannot use this garnishment proceeding to collaterally\nattack the amount of restitution ordered in his criminal case”); United States v. Miller, 599\n 10\n\f Case: 18-50058 Document: 00515001333 Page: 11 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\nfinal on direct review, “they became res judicata . . . , ‘not only as to every\nmatter which was offered and received to sustain or defeat the claim or\ndemand, but as to any other admissible matter which might have been offered\nfor that purpose.’” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)\n(quoting Nevada v. United States, 463 U.S. 110, 130 (1983)). Parker’s first\nargument thus fails.\n His second argument also fails but for a different reason. On appeal,\nParker argues that Ex-Im Bank “had collected notes and civil judgments for\nthe total loss for the victims named in his plea agreement.” 10 We agree that if\nthis statement were proved to be true, Parker would have a valid argument.\nThe statute governing Parker’s restitution states that his restitution amount\n“shall be reduced by any amount later recovered as compensatory damages for\nthe same loss by the victim in—(A) any Federal civil proceeding; and (B) any\nState civil proceeding, to the extent provided by the law of the State.” 18 U.S.C.\n§ 3664(j)(2). The use of the words “reduced” and “later recovered” indicates\nthat Parker can make the argument as it applies to judgments recovered after\nthe restitution order is final. So, unlike the collateral attack on the restitution\n\n\n\n\nF.3d 484, 490 (5th Cir. 2010) (assuming that, if the writ of audita querela survives in criminal\nproceedings, it only applies to a restitution order that, “though correct when rendered, has\nsince become infirm”); Patel v. Mukasey, 526 F.3d 800, 804 (5th Cir. 2008) (concluding a\ndefendant “cannot now collaterally attack the validity of his restitution order” because\n“whether there was an actual loss sufficient to justify an order of restitution under 18 U.S.C.\n§ 3664 is an issue that should have been raised and argued before the sentencing court”).\nThe fact that Parker frames one of his arguments as an issue of subject matter jurisdiction\ndoes not matter. See Kontrick v. Ryan, 540 U.S. 443, 455 & n.9 (2004) (noting that, although\na litigant may raise an issue of subject matter jurisdiction at any time, “[e]ven subject-matter\njurisdiction . . . may not be attacked collaterally”).\n 10Parker argued below that he should receive credit against his restitution order for\nother post-judgment developments, like restitution payments by a co-conspirator. He has not\nbriefed any of those issues on appeal. “Failure to brief an issue on appeal constitutes waiver.”\nLara v. Johnson, 141 F.3d 239, 242 n.3 (5th Cir.), reh’g granted, opinion modified, 149 F.3d\n1226 (5th Cir. 1998).\n 11\n\f Case: 18-50058 Document: 00515001333 Page: 12 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\norder’s calculations at the time of sentencing, Parker was permitted to make\nthis argument post-judgment because, practically speaking, that is the only\ntime he could have made that argument concerning payments allegedly made\nafter the judgment was entered. 11\n But even considering all the evidence Parker presented below, 12 Parker\ndoes not meet the evidentiary requirements of § 3664(j)(2). We have held that\nthe defendant bears the burden of proving an offset under § 3664(j)(2). See\nUnited States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998). That burden\nincludes proving the value of any alleged offset. Id. at 449–50. Parker never\nidentified to the district court the amount that Ex-Im Bank allegedly recovered\nafter the entry of his restitution order. His argument thus failed on that\nground.\n III. Conclusion\n We DENY Parker a COA to appeal the district court’s dismissal of his\nchallenges to his conviction. He is ORDERED to pay $1,000 to the Clerk of\nthis court, and he is BARRED from filing in this court or in any court subject\nto this court’s jurisdiction any challenge to his conviction or sentence until the\nsanction is paid in full unless he first obtains leave of the court in which he\nseeks to file such challenge. Parker is WARNED again that filing any future\nfrivolous, repetitive, or otherwise abusive challenges to his conviction or\n\n\n\n\n We assume without deciding that the vehicle through which he made this\n 11\n\nargument—a motion to quash a writ of execution—was a proper vehicle.\n 12 As noted above, Parker moved to quash the writ of execution. When it was denied,\nhe moved for reconsideration of the motion, this time including more evidence in support of\nhis argument. He appealed only the denial of reconsideration. We need not decide what legal\nstandards would have governed the motion for reconsideration below or on appeal because\neven if we consider all the evidence under a de novo standard of review, he still fails to make\nout a claim.\n 12\n\f Case: 18-50058 Document: 00515001333 Page: 13 Date Filed: 06/18/2019\n\n\n\n No. 18-50058\nsentence in this court or any court subject to this court’s jurisdiction will\nsubject him to additional and progressively more severe sanctions.\n We AFFIRM the district court’s Orders Denying Quash Reconsideration.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Andrew Maxwell PARKER, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50058 Document: 00515001333 Page: 1 Date Filed: 06/18/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-50058 June 18, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nANDREW MAXWELL PARKER,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nHAYNES, Circuit Judge:\\n Andrew Parker was convicted of an assortment of fraud crimes more\\nthan a decade ago. Since then, he has revisited our court at least ten times\\nthrough a combination of a direct appeal, appeals from 28 U.S.C. § 2255\\ndenials, requests for authorization to file successive § 2255 motions, and a\\npetition for writ of mandamus. Though the procedural vehicles have changed,\\nhis arguments have not, and we have repeatedly denied his requests for\\ncertificates of appealability (COA) and authorization to file successive § 2255\\nmotions.\\n Parker once again tried his luck with these arguments before the district\\ncourt, filing another motion under § 2255. The district court dismissed the\\n\\f Case: 18-50058 Document: 00515001333 Page: 2 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nmotion for lack of jurisdiction because Parker failed to receive authorization\\nfrom our court to file a successive petition under § 2255. Parker then requested\\nreconsideration, which the district court denied. He has now appealed,\\nimplicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal\\nfor lack of jurisdiction, and sanction him for appealing his collateral attack on\\nhis conviction.\\n But Parker has also appealed a new issue not foreclosed by his prior\\nefforts. In the district court, he challenged the amount of restitution he was\\nordered to pay. Parker argues that the victims of his crimes have recovered\\nsome of their damages through a civil judgment. The statutes governing\\nrestitution grant Parker the right to reduce his restitution order based on\\nsubsequent civil judgments. But Parker failed to present necessary evidence\\nto succeed on his claim. We thus AFFIRM the district court’s denial of his\\nrequest to quash the Government’s writ of execution. 1\\n I. Background\\n Andrew Parker used his company, San Antonio Trade Group, Inc.\\n(“SATG”), to defraud the Export-Import Bank of the United States (“Ex-Im\\nBank”). He collaborated with people in Mexico to seek loans from United\\nStates companies based on lies and forged documents. Ex-Im Bank insured\\nand guaranteed the loans. Once the loans were insured and guaranteed,\\nParker diverted millions of dollars in loan money to himself rather than for the\\nstated purposes. Along the way, he committed wire fraud, money laundering,\\ntax evasion, tax fraud, and conspiracy.\\n Eventually Parker was caught and pleaded guilty to those crimes under\\na written plea agreement. In accordance with the plea agreement, the district\\n\\n\\n\\n 1 Parker’s motion to determine jurisdiction in advance of appellate briefing is denied\\nas moot.\\n 2\\n\\f Case: 18-50058 Document: 00515001333 Page: 3 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\ncourt sentenced Parker to a term of imprisonment and supervised release and\\nordered Parker to pay $10 million in restitution.\\n Since then, Parker has doggedly tried to undo his conviction. Parker’s\\nfirst attack on his plea agreement and conviction came when he appealed his\\nconviction. See United States v. Parker, 372 F. App’x 558 (5th Cir. 2010) (per\\ncuriam). He argued that the indictment, plea agreement, and plea colloquy did\\nnot set out facts that proved he committed some of the alleged crimes. Id. at\\n560–62. We rejected his arguments and affirmed. Id. at 563.\\n Less than a year later, Parker filed his first § 2255 motion in April 2011.\\nHis arguments ranged wide, including many related to the arguments he\\nmakes in this appeal: the Government committed a Brady 2 violation or elicited\\nor permitted false evidence, and his counsel was ineffective by failing to\\nchallenge the wire fraud counts for lack of an interstate nexus. The district\\ncourt identified and rejected those arguments. 3 Parker sought reconsideration,\\nwhich was also denied. We denied Parker a COA, concluding that all\\nreasonable jurists would agree that the district court’s order was correct.\\n Between that motion and the motions leading to this appeal, Parker filed\\nnumerous other motions in the district court. The district court rejected all\\nthose motions on the grounds that they were unauthorized successive motions,\\nsee § 2255(h) (requiring a defendant who files a “second or successive motion”\\nto receive authorization to file it from the proper court of appeals in accordance\\nwith § 2244), or, to the extent they were not, they were barred by § 2255’s one-\\n\\n\\n\\n 2 Brady v. Maryland, 373 U.S. 83 (1963).\\n 3 The district court did accept Parker’s argument, with which the Government agreed,\\nthat his term of supervised release exceeded the statutory maximum. It amended his\\njudgment to reflect the statutory maximum. Though Parker appealed the amended judgment\\nthat incorporated this change, we stated that his arguments attacked the denial of the § 2255\\norder; we concluded the appeal from the amended judgment should be dismissed for lack of\\na COA and indicated Parker could seek one in the other appeal he had then filed.\\n 3\\n\\f Case: 18-50058 Document: 00515001333 Page: 4 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nyear period of limitations, see § 2255(f). Each time Parker appealed the district\\ncourt’s order, and each time we denied him a COA. The most recent time we\\naddressed one of Parker’s appeals, a judge of this court imposed sanctions on\\nhim for filing frivolous appeals.\\n While he filed district court motions, Parker also twice requested that\\nour court grant him authorization to file a successive motion. We denied\\nauthorization both times—once because Parker had not identified an exception\\nto the successive motion bar, see In re Parker, 575 F. App’x 415 (5th Cir. 2014),\\nand another time because the evidence he pointed to did not satisfy the “newly\\ndiscovered evidence” exception to that bar.\\n In all, we have addressed Parker’s case eight times: one affirmance on\\ndirect appeal, five denials of COAs, and two denials of requests for\\nauthorization to file a successive motion. 4\\n Undeterred, Parker tried again. After each of his previous attempts\\nfailed, Parker filed another motion under § 2255. The district court again\\ndismissed the motion as an unauthorized successive motion. Parker then\\nrequested reconsideration, which was denied. He then requested\\nreconsideration of the district court’s denial of reconsideration. The district\\ncourt again denied reconsideration. Parker appealed from the order denying\\nreconsideration of the order denying reconsideration of the § 2255 motion,\\nwhich we now call the Order Denying Reconsideration of Reconsideration of\\n§ 2255.\\n\\n\\n\\n\\n 4 We have also dismissed another appeal for failure to prosecute and denied a recently\\nfiled petition for writ of mandamus that covered the same district court actions that are now\\nthe subject of this appeal.\\n 4\\n\\f Case: 18-50058 Document: 00515001333 Page: 5 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\n While he re-pressed his § 2255 motion, Parker also filed a new type of\\nmotion. Parker, now released from prison, 5 moved to quash the Government’s\\nwrit of execution used to enforce the restitution order against him. Though the\\ntype of motion was new, the arguments mostly were not. They largely followed\\nthe exact same arguments made in Parker’s previously rejected § 2255\\nproceedings.\\n Parker did, however, make one new argument specific to the motion to\\nquash. He argued that the Government had collected money that had not been\\ncredited against the restitution order. The district court held a hearing on the\\nmotion to quash and permitted Parker to present evidence in support of his\\narguments. Parker presented evidence only about his argument that the\\ndistrict court lacked jurisdiction over him because there was no interstate wire\\ntransfer. He did not present any evidence that the Government had collected\\nmoney on his restitution order. Less than two weeks after the hearing, the\\ndistrict court denied Parker’s motion to quash.\\n Parker moved for reconsideration and later filed a supplement to the\\nmotion. The supplement focused heavily on his new argument, particularly\\nthat Ex-Im Bank had already recovered money that should be credited against\\nhis restitution. It identified an affidavit submitted with one of his previous\\n§ 2255 motions that stated that Ex-Im Bank had collected money from entities\\nrelated to his scheme. The district court denied the motion for reconsideration\\nand its supplement, orders which we collectively call the Orders Denying\\nQuash Reconsideration. Parker appealed the Orders Denying Quash\\nReconsideration, which we consolidated with his other appeal.\\n\\n\\n\\n\\n 5Parker is still on supervised release, so he is still “in custody” for purposes of § 2255.\\nSee United States v. Scruggs, 691 F.3d 660, 662 n.1 (5th Cir. 2012).\\n 5\\n\\f Case: 18-50058 Document: 00515001333 Page: 6 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\n II. Discussion\\n A. Collateral Attack on Conviction\\n We begin by dismissing for lack of jurisdiction Parker’s appeals to the\\nextent they challenge his previous conviction. Those aspects of his motions\\nshould be treated as motions for relief under § 2255, regardless of what they\\nare titled. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v.\\nHernandes, 708 F.3d 680, 681–82 (5th Cir. 2013). When a defendant appeals\\nsuch orders, he must first receive a COA. See 28 U.S.C. § 2253(c)(1)(B). The\\nabsence of a COA deprives this court of jurisdiction to address the merits of\\nthose arguments. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a\\nCOA has been issued federal courts of appeals lack jurisdiction to rule on the\\nmerits of appeals from habeas petitioners.”). To receive a COA, “a petitioner\\nmust show that reasonable jurists could debate whether (or, for that matter,\\nagree that) the petition should have been resolved in a different manner or that\\nthe issues presented were adequate to deserve encouragement to proceed\\nfurther.” Id. (brackets and internal quotation marks omitted) (quoting Slack\\nv. McDaniel, 529 U.S. 473, 484 (2000)).\\n Reasonable jurists would all agree that the district court lacked\\njurisdiction because Parker had not received authorization to file a successive\\n§ 2255 motion. Parker previously requested, and was denied, authorization to\\nfile a successive § 2255 motion making the same arguments he made below\\nand now makes on appeal. See In re Parker, No. 14-50911 (5th Cir. Nov. 10,\\n2014). In denying the motion for authorization, we concluded that “[a]ll of\\nParker’s complaints involve matters that could have and should have been\\nasserted on direct appeal or on appeal from the denial of the initial § 2255\\nmotion.” Id. We also concluded that he had not presented new evidence or\\nestablished an actual innocence exception to the successive § 2255 bar. See id.\\nDespite our denying authorization, Parker filed his motion anyway. The\\n 6\\n\\f Case: 18-50058 Document: 00515001333 Page: 7 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\ndistrict court was therefore correct to deny Parker’s § 2255 motion for want of\\njurisdiction. See 28 U.S.C. § 2255(h); Crone v. Cockrell, 324 F.3d 833, 836–38\\n(5th Cir. 2003) (holding that a district court lacks jurisdiction to address a\\nsuccessive motion without authorization from the court of appeals).\\n We have previously sanctioned Parker in the amount of $100 for\\npursuing frivolous litigation in our court. Because that has not dissuaded him\\nfrom further frivolous filings, we again sanction him. It is ORDERED that\\nParker pay $1,000 to the Clerk of this court, and he is BARRED from filing in\\nthis court or in any court subject to this court’s jurisdiction any challenge to\\nhis conviction or sentence until the sanction is paid in full unless he first\\nobtains leave of the court in which he seeks to file such a challenge. Parker is\\nWARNED again that filing any future frivolous, repetitive, or otherwise\\nabusive challenges to his conviction or sentence in this court or any court\\nsubject to this court’s jurisdiction will subject him to additional and\\nprogressively more severe sanctions.\\n B. Attack on Restitution Amount\\n Parker also appeals the district court’s denial of his request to quash a\\nwrit of execution against his property to collect the restitution he owes. He\\nargues two different theories for why he does not owe the restitution ordered.\\nWe first assure ourselves of jurisdiction to address the restitution aspects of\\nhis appeal and then explain why the district court did not err in rejecting both\\ntheories.\\n 1. Jurisdiction\\n Parker asserts that we have jurisdiction over the district court’s denial\\nof his writ of execution because it is an appeal from a “final decision[]” under\\n28 U.S.C. § 1291. We have previously said it is “close question” whether a\\ndefendant can appeal the denial of a motion to quash a writ of execution under\\n\\n\\n 7\\n\\f Case: 18-50058 Document: 00515001333 Page: 8 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\n§ 1291. See United States v. King, 123 F. App’x 144, 146 n.1 (5th Cir. 2004)\\n(per curiam). We now hold that such a denial is a final decision.\\n In prior times, we said that “the refusal to quash an execution is not a\\nfinal judgment.” Noojin v. United States, 164 F. 692, 693 (5th Cir. 1908) (per\\ncuriam) (citing, inter alia, Loeber v. Schrader, 149 U.S. 580, 585 (1893)). Other\\ncircuits have said the same thing. See United States v. Moore, 878 F.2d 331\\n(9th Cir. 1989) (per curiam); United States v. Stangland, 270 F.2d 893, 894 (7th\\nCir. 1959). But those cases were all decided prior to the Federal Debt\\nCollection Procedures Act of 1990, when the Government would have had to\\nexecute judgment in accordance with state law. See Seth S. Katz, Federal Debt\\nCollection Under the Federal Debt Collection Procedures Act: The Preemption\\nof State Real Estate Laws, 46 EMORY L.J. 1697, 1699 (1997). Obviously, those\\ncases could not and did not decide the question of whether writs of execution\\nissued under the Federal Debt Collection Procedures Act of 1990 are final\\norders. 6 See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.\\n2008) (explaining that the rule of orderliness prevents altering prior precedent\\nof our court “absent an intervening change in the law”). Given the change in\\nthe law evinced by the new statutory scheme as discussed below and\\n\\n\\n\\n\\n 6 Even if the order in this case was not a “final decision” under § 1291, we would then\\nconclude it is an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). That provision\\ngrants appellate jurisdiction over “[i]nterlocutory orders . . . granting, continuing, modifying,\\nrefusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.” Though the\\norder granting the writ of execution was not labeled an injunction, that does not matter. We\\nhave said that an order that “has ‘the practical effect’ of granting or denying an injunction”\\nmay be appealed under § 1292(a)(1). See United States v. Real Prop. Located at 1407 N.\\nCollins St., 901 F.3d 268, 272 (5th Cir. 2018) (quoting Abbott v. Perez, 138 S. Ct. 2305, 2319–\\n20 (2018)). We have found jurisdiction over other interlocutory orders that have a similar,\\nless burdensome effect on property seized by the Government. See 1407 N. Collins St., 901\\nF.3d at 271–73. Thus, in the alternative, we conclude the orders in this case are similarly\\nappealable under § 1292(a)(1).\\n 8\\n\\f Case: 18-50058 Document: 00515001333 Page: 9 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nconsidering the posture of Parker’s case, we conclude that the order denying\\nParker’s motion to quash the writ of execution is a final decision under § 1291.\\n A final decision is typically one that “ends the litigation on the merits\\nand leaves nothing for the court to do but execute the judgment.” Hall v. Hall,\\n138 S. Ct. 1118, 1123–24 (2018) (quoting Ray Haluch Gravel Co. v. Cent.\\nPension Fund of Operating Eng’rs and Participating Emp’rs, 571 U.S. 177, 183\\n(2014)). Parker’s motion to quash the writ of execution of the judgment,\\nthough, is litigation over the execution of the judgment. Courts generally view\\nsuch post-judgment motions “as a separate lawsuit from the action which\\nproduced the underlying judgment. Consequently, the requirements of finality\\nmust be met without reference to that underlying judgment.” In re Joint E. &\\nS. Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994); see also\\nStudiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 131 (5th\\nCir. 1983) (concluding that a post-judgment order awarding costs was not final\\nuntil the amount of costs was fixed). The dispositive question, then, is whether\\nthere is anything left for the district court to do with respect to execution of the\\njudgment after denial of Parker’s motion.\\n There is not. Under the Federal Debt Collection Procedures Act of 1990,\\nPub. L. No. 101–647, 104 Stat 4789 (1990), the Government can collect on\\njudgments in its favor through, among other things, a writ of execution. See\\n28 U.S.C. § 3203. The writ of execution allows a United States marshal to\\n“levy” 7 the defendant’s property to satisfy the judgment. See 28 U.S.C.\\n§ 3203(d) (specifying that writs of execution are levied under the same\\nprocedures as those for writs of attachment in 28 U.S.C. § 3102(d)); id.\\n§ 3102(d)(1) (authorizing the marshal to levy property). Once levied, the\\n\\n\\n\\n 7“Levy” generally means to “take or seize property in execution of a judgment.” Levy,\\nBLACK’S LAW DICTIONARY (10th ed. 2014).\\n 9\\n\\f Case: 18-50058 Document: 00515001333 Page: 10 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nproperty becomes the Government’s to sell to satisfy the defendant’s judgment.\\nSee 28 U.S.C. § 3203(g). Every writ of execution directs the marshal to not only\\nlevy but also to sell the property, subject to a few irrelevant exceptions. See 28\\nU.S.C. § 3203(c)(2)(B). The marshal may continue to use the same writ of\\nexecution to levy property until the judgment is satisfied. See 28 U.S.C.\\n§ 3203(h)(2). Thus, once a district court has issued a writ of execution, all that\\nremains is for a non-judicial officer to take and dispose of the defendant’s\\nproperty. The statutes do not grant Parker a right to challenge the writ of\\nexecution at any later point, and there is nothing left to be done after execution\\nis complete. The district court’s order is thus final, as two other circuits have\\nconcluded about similar orders. See United States v. Peters, 783 F.3d 1361,\\n1363 (11th Cir. 2015) (per curiam) (concluding that an order denying a\\ndefendant’s request to transfer to another court and granting the government’s\\napplication for a writ of execution was a final, appealable order); United States\\nv. Furkin, 165 F.3d 33 (7th Cir. 1998) (unpublished table decision) (holding\\nthat the court had jurisdiction over the district court’s approval of writs of\\nexecution).\\n 2. Merits\\n Parker makes two arguments about the merits of his restitution order,\\nneither of which succeed. Parker first argues that the restitution amount was\\nincorrect the day it was ordered. 8 But we have denied numerous attempts to\\ncollaterally attack a restitution order. 9 That is because once orders become\\n\\n\\n 8 Parker’s argument about the amount of restitution is not subject to the rules of\\n§ 2255 because we have previously concluded that “complaints concerning restitution may\\nnot be addressed in § 2255 proceedings.” United States v. Hatten, 167 F.3d 884, 887 (5th Cir.\\n1999) (noting that § 2255 challenges are limited to unlawful custody, not imposition of\\nmonetary penalties).\\n 9 See, e.g., United States v. Goyette, 446 F. App’x 718, 720–21 (5th Cir. 2011) (per\\ncuriam) (concluding that a defendant “cannot use this garnishment proceeding to collaterally\\nattack the amount of restitution ordered in his criminal case”); United States v. Miller, 599\\n 10\\n\\f Case: 18-50058 Document: 00515001333 Page: 11 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nfinal on direct review, “they became res judicata . . . , ‘not only as to every\\nmatter which was offered and received to sustain or defeat the claim or\\ndemand, but as to any other admissible matter which might have been offered\\nfor that purpose.’” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)\\n(quoting Nevada v. United States, 463 U.S. 110, 130 (1983)). Parker’s first\\nargument thus fails.\\n His second argument also fails but for a different reason. On appeal,\\nParker argues that Ex-Im Bank “had collected notes and civil judgments for\\nthe total loss for the victims named in his plea agreement.” 10 We agree that if\\nthis statement were proved to be true, Parker would have a valid argument.\\nThe statute governing Parker’s restitution states that his restitution amount\\n“shall be reduced by any amount later recovered as compensatory damages for\\nthe same loss by the victim in—(A) any Federal civil proceeding; and (B) any\\nState civil proceeding, to the extent provided by the law of the State.” 18 U.S.C.\\n§ 3664(j)(2). The use of the words “reduced” and “later recovered” indicates\\nthat Parker can make the argument as it applies to judgments recovered after\\nthe restitution order is final. So, unlike the collateral attack on the restitution\\n\\n\\n\\n\\nF.3d 484, 490 (5th Cir. 2010) (assuming that, if the writ of audita querela survives in criminal\\nproceedings, it only applies to a restitution order that, “though correct when rendered, has\\nsince become infirm”); Patel v. Mukasey, 526 F.3d 800, 804 (5th Cir. 2008) (concluding a\\ndefendant “cannot now collaterally attack the validity of his restitution order” because\\n“whether there was an actual loss sufficient to justify an order of restitution under 18 U.S.C.\\n§ 3664 is an issue that should have been raised and argued before the sentencing court”).\\nThe fact that Parker frames one of his arguments as an issue of subject matter jurisdiction\\ndoes not matter. See Kontrick v. Ryan, 540 U.S. 443, 455 & n.9 (2004) (noting that, although\\na litigant may raise an issue of subject matter jurisdiction at any time, “[e]ven subject-matter\\njurisdiction . . . may not be attacked collaterally”).\\n 10Parker argued below that he should receive credit against his restitution order for\\nother post-judgment developments, like restitution payments by a co-conspirator. He has not\\nbriefed any of those issues on appeal. “Failure to brief an issue on appeal constitutes waiver.”\\nLara v. Johnson, 141 F.3d 239, 242 n.3 (5th Cir.), reh’g granted, opinion modified, 149 F.3d\\n1226 (5th Cir. 1998).\\n 11\\n\\f Case: 18-50058 Document: 00515001333 Page: 12 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\norder’s calculations at the time of sentencing, Parker was permitted to make\\nthis argument post-judgment because, practically speaking, that is the only\\ntime he could have made that argument concerning payments allegedly made\\nafter the judgment was entered. 11\\n But even considering all the evidence Parker presented below, 12 Parker\\ndoes not meet the evidentiary requirements of § 3664(j)(2). We have held that\\nthe defendant bears the burden of proving an offset under § 3664(j)(2). See\\nUnited States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998). That burden\\nincludes proving the value of any alleged offset. Id. at 449–50. Parker never\\nidentified to the district court the amount that Ex-Im Bank allegedly recovered\\nafter the entry of his restitution order. His argument thus failed on that\\nground.\\n III. Conclusion\\n We DENY Parker a COA to appeal the district court’s dismissal of his\\nchallenges to his conviction. He is ORDERED to pay $1,000 to the Clerk of\\nthis court, and he is BARRED from filing in this court or in any court subject\\nto this court’s jurisdiction any challenge to his conviction or sentence until the\\nsanction is paid in full unless he first obtains leave of the court in which he\\nseeks to file such challenge. Parker is WARNED again that filing any future\\nfrivolous, repetitive, or otherwise abusive challenges to his conviction or\\n\\n\\n\\n\\n We assume without deciding that the vehicle through which he made this\\n 11\\n\\nargument—a motion to quash a writ of execution—was a proper vehicle.\\n 12 As noted above, Parker moved to quash the writ of execution. When it was denied,\\nhe moved for reconsideration of the motion, this time including more evidence in support of\\nhis argument. He appealed only the denial of reconsideration. We need not decide what legal\\nstandards would have governed the motion for reconsideration below or on appeal because\\neven if we consider all the evidence under a de novo standard of review, he still fails to make\\nout a claim.\\n 12\\n\\f Case: 18-50058 Document: 00515001333 Page: 13 Date Filed: 06/18/2019\\n\\n\\n\\n No. 18-50058\\nsentence in this court or any court subject to this court’s jurisdiction will\\nsubject him to additional and progressively more severe sanctions.\\n We AFFIRM the district court’s Orders Denying Quash Reconsideration.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2461,"cells":{"id":{"kind":"number","value":4631135,"string":"4,631,135"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Agustine SANCHEZ-HERNANDEZ, Also Known as Augustin Sanchez, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Agustine Sanchez-Hernandez"},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"18-40211"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JONES, HO, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"ANDREW S. OLDHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40211 Document: 00515001593 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-40211\\n Fifth Circuit\\n\\n FILED\\n June 19, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff-Appellee,\\n\\nv.\\n\\nAGUSTINE SANCHEZ-HERNANDEZ, also known as Augustin Sanchez,\\n\\n Defendant-Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore JONES, HO, and OLDHAM, Circuit Judges.\\nANDREW S. OLDHAM, Circuit Judge:\\n Agustine Sanchez-Hernandez argues the district court plainly erred in\\ncalculating his Guidelines range at sentencing. That calculation was based on\\ntreating his prior state court convictions—for exposing himself to and sexually\\nassaulting a fourteen-year-old girl—as crimes of violence. We affirm.\\n I.\\n On October 17, 2017, Sanchez-Hernandez illegally entered the United\\nStates for the third time. When officers approached him, Sanchez-Hernandez\\nadmitted he had recently waded across the Rio Grande river. So the federal\\ngovernment charged him with illegally reentering the country after having\\nbeen previously removed. 8 U.S.C. § 1326(a)–(b). Sanchez-Hernandez pleaded\\nguilty on December 6, 2017.\\n\\f Case: 18-40211 Document: 00515001593 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\n Prior to the scheduled sentencing hearing, the probation office prepared\\na Presentence Report (“PSR”). It assigned an offense level of 17 and a criminal\\nhistory category of IV, which yielded a Guidelines range of 37 to 46 months in\\nprison. 1 Those calculations were based in part on Sanchez-Hernandez’s prior\\ncriminal history.\\n First, in 2010, he pleaded guilty to indecency with a child. TEX. PENAL\\nCODE § 21.11. After dancing with a fourteen-year-old girl at a banquet hall,\\nSanchez-Hernandez took her outside, began kissing her, unzipped his pants,\\nexposed himself, grabbed the girl’s hands, and put them on his penis.\\n Second, also in 2010, a Texas jury convicted Sanchez-Hernandez of\\nsexually assaulting a child based on the same incident. Id. § 22.011. After\\nforcing the girl to touch him, Sanchez-Hernandez put his penis in the girl’s\\nmouth. The state court sentenced him to concurrent two-year sentences for\\nboth offenses and required him to register as a sex offender. Upon his release\\nin 2012, the federal government removed him to Mexico.\\n Third, in 2014, Sanchez-Hernandez pleaded guilty to illegal reentry. 8\\nU.S.C. § 1326(a)–(b). Just one month after the government removed him to\\nMexico, Sanchez-Hernandez rafted across the Rio Grande back into Texas. The\\nfederal court sentenced him to 41 months in prison.\\n The PSR determined these offenses warranted 7 criminal history points.\\nIt assigned 3 points for the indecency offense and 3 points for the illegal reentry\\noffense under § 4A1.1. Then the PSR added 1 additional criminal history point\\nunder § 4A1.2(a)(2) and § 4A1.1(e) because it treated the two sex offenses as\\n\\n\\n\\n\\n 1 The PSR initially assigned an offense level of 18, which yielded a Guidelines range\\nof 41 to 51 months. But it also assigned an alternative level-17 calculation in the event the\\ndistrict court awarded a 1-point decrease for acceptance of responsibility. At sentencing, the\\ngovernment sought—and the district court granted—the additional 1-point reduction.\\n 2\\n\\f Case: 18-40211 Document: 00515001593 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\n“crimes of violence.” The addition of that 1 point bumped Sanchez-Hernandez\\nfrom criminal history category III to category IV.\\n At sentencing on February 21, 2018, the court began by asking Sanchez-\\nHernandez if he had been given “a chance to review [the PSR] with [his]\\nlawyer.” Sanchez-Hernandez agreed he had. And he had just one correction:\\nHe had been arrested by local police officers, not federal Customs and Border\\nPatrol officers, as the PSR indicated. But that was all:\\n THE COURT: Was everything else correct?\\n DEFENDANT SANCHEZ-HERNANDEZ: Yes. Yes, sir.\\n Sanchez-Hernandez’s counsel argued the prior convictions were\\n“remote,” were not “assaultive,” and overrepresented his criminal history. He\\ntherefore asked for a downward departure or a sentence at the low end of the\\n37-to-46-month range. The government disagreed. It pressed the seriousness\\nof the prior sex offenses and the quickness of Sanchez-Hernandez’s illegal\\nreentry after his 2017 release. Accordingly, it asked for an upward variance to\\na range of 57 to 71 months. Sanchez-Hernandez added little in his allocution.\\nHe admitted, “truly, I don’t regret this. In a sense, I don’t regret it because I\\ncame to help my family.” (He told the probation office his son has “unspecified\\nproblems with his feet,” and his son’s mother had been diagnosed with cancer.\\nWhen the probation office asked for his family’s contact information to confirm\\nthese facts, Sanchez-Hernandez refused to provide it.)\\n The court adopted the PSR’s findings but concluded a criminal history\\ncategory of V (with a range of 46 to 57 months) more accurately reflected the\\nlikelihood of Sanchez-Hernandez’s recidivism. The court noted it had\\npreviously sentenced Sanchez-Hernandez to 41 months for illegal reentry, only\\nfor Sanchez-Hernandez to “return[ ] within about six months of having been\\nreleased from that sentence for this identical crime.” “I believe he merits\\ngraduated punishment,” the court said, “but it’s for his recidivism that he\\n 3\\n\\f Case: 18-40211 Document: 00515001593 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\nmerits additional time in jail.” So, it sentenced Sanchez-Hernandez to 48\\nmonths. Defense counsel objected that the sentence was substantively\\nunreasonable. Sanchez-Hernandez appealed.\\n II.\\n In this appeal, Sanchez-Hernandez argues for the first time that the\\ndistrict court erred by treating his Texas convictions as crimes of violence and\\nassigning 1 criminal history point under § 4A1.1(e). That additional point put\\nhim in category IV rather than category III and increased his Guidelines range\\nfrom 30–37 months to 37–46 months. Everyone agrees plain-error review\\napplies.\\n Rule 52 provides that “[a] plain error that affects substantial rights may\\nbe considered even though it was not brought to the court’s attention.” FED. R.\\nCRIM. P. 52(b). The Supreme Court has read this language to require a four-\\npart showing: The defendant must show (1) that the district court committed\\nan error (2) that is plain and (3) affects his substantial rights and (4) that\\nfailure to correct the error would “seriously affect the fairness, integrity or\\npublic reputation of judicial proceedings.” Johnson v. United States, 520 U.S.\\n461, 466–67 (1997) (alteration and quotation omitted). Only then may we\\ncorrect a forfeited error.\\n As a threshold matter, the government concedes the first two prongs.\\nBut the government cannot waive the proper interpretation of Rule 52. See\\nKamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); EEOC v. Fed. Labor\\nRelations Auth., 476 U.S. 19, 23 (1986) (per curiam). And it is unclear whether\\nthe district court committed any “error,” let alone a plain one. 2\\n\\n\\n 2 Plain-error review is available only for forfeitures—not waivers. Intentionally\\nrelinquishing a right (waiver) “extinguish[es] an ‘error’ under Rule 52(b).” United States v.\\nOlano, 507 U.S. 725, 733 (1993). Here, it’s possible Sanchez-Hernandez affirmatively\\nrelinquished his right. The district court asked if “everything else [in the PSR was] correct.”\\nSanchez-Hernandez said “Yes.”\\n 4\\n\\f Case: 18-40211 Document: 00515001593 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\n We need not address the question, however, because Sanchez-Hernandez\\nfails on the third prong of the plain-error standard. Prong three requires\\nSanchez-Hernandez to prove the error “affected [his] substantial rights, which\\nin the ordinary case means he . . . must show a reasonable probability that, but\\nfor the error, the outcome of the proceeding would have been different.”\\nMolina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citation and\\nquotation omitted). In Molina-Martinez, the district court stated it was\\nadopting the PSR’s recommendations, sentenced the defendant at the low end\\nof the (incorrect) Guidelines range, and “provided no further explanation for\\nthe sentence.” Id. at 1344. Because the district court “said nothing specific\\nabout why it chose the sentence” besides merely adopting the recommended\\nrange, “the Guidelines served as the starting point for the sentencing and were\\nthe focal point for the proceedings that followed.” Id. at 1347. In that scenario,\\nthe Court held, it was unfair to require “additional evidence” that the district\\ncourt might have imposed a different sentence under the correct Guidelines\\nrange. Id. at 1347–48 (“The decision today simply states that courts reviewing\\nsentencing errors cannot apply a categorical rule requiring additional\\nevidence. . . .”).\\n True, Molina-Martinez predicted erroneous Guidelines ranges will\\nnormally suffice to satisfy the third prong. But the Court recognized that won’t\\nalways be the case. Id. at 1346–47; see Griffith v. United States, 871 F.3d 1321,\\n1338 (11th Cir. 2017) (Molina-Martinez’s “prediction [of what will normally\\nsuffice] is not, however, a presumption.”). In some cases, like this one, the\\ndistrict court might offer “a detailed explanation of the reasons the selected\\nsentence is appropriate.” Molina-Martinez, 136 S. Ct at 1346–47. When it\\ndoes so, the question remains: What was driving this judge’s decision to impose\\nthis sentence for this defendant? In answering that question, we apply no\\n\\n\\n 5\\n\\f Case: 18-40211 Document: 00515001593 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\npresumptions or categorical rules. Instead, we “consider the facts and\\ncircumstances of the case before” us. Id. at 1346.\\n Those facts and circumstances prove there is no reasonable probability\\nof prejudice. At the outset, the district court made crystal clear what was\\ndriving its sentencing decision: “I believe he merits graduated punishment,\\nbut it’s for his recidivism that he merits additional time in jail.” (emphasis\\nadded). The court then accepted the PSR’s findings, but it concluded category\\nIV “substantially under-represents the likelihood of recidivism given [Sanchez-\\nHernandez] had just received a 41-month sentence.” That was insufficient, the\\ndistrict court concluded, because Sanchez-Hernandez turned around and\\nreentered again. So the court assigned Sanchez-Hernandez to category V, with\\na range of 46 to 57 months. But it never once discussed the (erroneous) range\\nunder category IV. Instead, it constantly juxtaposed its chosen sentence—48\\nmonths—with the apparently insufficient prior sentence of 41 months. The\\njudge did not “use[ ] the sentencing range as the beginning point to explain the\\ndecision to deviate from it.” Peugh v. United States, 569 U.S. 530, 542 (2013)\\n(quotation omitted). So, “the Guidelines are [not] in a real sense the basis for\\nthe sentence.” Ibid. (emphasis and quotation omitted).\\n If the range had been 30–37 months rather than 37–46 months, it’s\\nunlikely anything would have changed. The district court would have treated\\ncategory III (with its 37-month ceiling) as plainly insufficient based on its belief\\nthat the earlier 41-month sentence failed to deter Sanchez-Hernandez. And\\nthe court in fact believed category IV was insufficient because the defendant\\nquickly reentered the United States after his most recent illegal reentry\\nconviction. Nothing about the classification of his sex offenses alters that focus\\non Sanchez-Hernandez’s contumacy. In fact, the court never cited those\\nconvictions in explaining its chosen sentence—even though counsel had raised\\narguments about them earlier. In this particular case, the district court’s\\n 6\\n\\f Case: 18-40211 Document: 00515001593 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\nexplanation “make[s] it clear that the judge based the sentence . . . on factors\\nindependent of the Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. 3\\n AFFIRMED.\\n\\n\\n\\n\\n 3 Sanchez-Hernandez also argues “[t]he equities in this case . . . warrant correction of\\nthe error.” Appellant’s Br. 28. In his opening brief, Sanchez-Hernandez relies on “the\\nequities” under prong four of the plain-error standard, see ibid., but in his reply brief he\\ndiscusses “the equities” under prong three, see Reply Br. 5. It is unclear the equities\\ncommand relief for recidivist re-entry by a man with multiple convictions for sexually abusing\\na child. But it doesn’t matter. Under prong three, it remains the defendant’s burden (not\\nthe government’s) to prove prejudice. See Molina-Martinez, 136 S. Ct. at 1348 (discussing\\nRule 52(b)). Sanchez-Hernandez cannot carry that burden here, regardless of the equities,\\ngiven the district court’s reasons for its sentence.\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408388/\", \"author_raw\": \"ANDREW S. OLDHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JONES"},"judge2":{"kind":"string","value":"HO"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JONES\": \", Circuit\", \"HO\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631135/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Agustine SANCHEZ-HERNANDEZ, Also Known as Augustin Sanchez, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40211 Document: 00515001593 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 18-40211\n Fifth Circuit\n\n FILED\n June 19, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff-Appellee,\n\nv.\n\nAGUSTINE SANCHEZ-HERNANDEZ, also known as Augustin Sanchez,\n\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore JONES, HO, and OLDHAM, Circuit Judges.\nANDREW S. OLDHAM, Circuit Judge:\n Agustine Sanchez-Hernandez argues the district court plainly erred in\ncalculating his Guidelines range at sentencing. That calculation was based on\ntreating his prior state court convictions—for exposing himself to and sexually\nassaulting a fourteen-year-old girl—as crimes of violence. We affirm.\n I.\n On October 17, 2017, Sanchez-Hernandez illegally entered the United\nStates for the third time. When officers approached him, Sanchez-Hernandez\nadmitted he had recently waded across the Rio Grande river. So the federal\ngovernment charged him with illegally reentering the country after having\nbeen previously removed. 8 U.S.C. § 1326(a)–(b). Sanchez-Hernandez pleaded\nguilty on December 6, 2017.\n\f Case: 18-40211 Document: 00515001593 Page: 2 Date Filed: 06/19/2019\n\n\n\n No. 18-40211\n Prior to the scheduled sentencing hearing, the probation office prepared\na Presentence Report (“PSR”). It assigned an offense level of 17 and a criminal\nhistory category of IV, which yielded a Guidelines range of 37 to 46 months in\nprison. 1 Those calculations were based in part on Sanchez-Hernandez’s prior\ncriminal history.\n First, in 2010, he pleaded guilty to indecency with a child. TEX. PENAL\nCODE § 21.11. After dancing with a fourteen-year-old girl at a banquet hall,\nSanchez-Hernandez took her outside, began kissing her, unzipped his pants,\nexposed himself, grabbed the girl’s hands, and put them on his penis.\n Second, also in 2010, a Texas jury convicted Sanchez-Hernandez of\nsexually assaulting a child based on the same incident. Id. § 22.011. After\nforcing the girl to touch him, Sanchez-Hernandez put his penis in the girl’s\nmouth. The state court sentenced him to concurrent two-year sentences for\nboth offenses and required him to register as a sex offender. Upon his release\nin 2012, the federal government removed him to Mexico.\n Third, in 2014, Sanchez-Hernandez pleaded guilty to illegal reentry. 8\nU.S.C. § 1326(a)–(b). Just one month after the government removed him to\nMexico, Sanchez-Hernandez rafted across the Rio Grande back into Texas. The\nfederal court sentenced him to 41 months in prison.\n The PSR determined these offenses warranted 7 criminal history points.\nIt assigned 3 points for the indecency offense and 3 points for the illegal reentry\noffense under § 4A1.1. Then the PSR added 1 additional criminal history point\nunder § 4A1.2(a)(2) and § 4A1.1(e) because it treated the two sex offenses as\n\n\n\n\n 1 The PSR initially assigned an offense level of 18, which yielded a Guidelines range\nof 41 to 51 months. But it also assigned an alternative level-17 calculation in the event the\ndistrict court awarded a 1-point decrease for acceptance of responsibility. At sentencing, the\ngovernment sought—and the district court granted—the additional 1-point reduction.\n 2\n\f Case: 18-40211 Document: 00515001593 Page: 3 Date Filed: 06/19/2019\n\n\n\n No. 18-40211\n“crimes of violence.” The addition of that 1 point bumped Sanchez-Hernandez\nfrom criminal history category III to category IV.\n At sentencing on February 21, 2018, the court began by asking Sanchez-\nHernandez if he had been given “a chance to review [the PSR] with [his]\nlawyer.” Sanchez-Hernandez agreed he had. And he had just one correction:\nHe had been arrested by local police officers, not federal Customs and Border\nPatrol officers, as the PSR indicated. But that was all:\n THE COURT: Was everything else correct?\n DEFENDANT SANCHEZ-HERNANDEZ: Yes. Yes, sir.\n Sanchez-Hernandez’s counsel argued the prior convictions were\n“remote,” were not “assaultive,” and overrepresented his criminal history. He\ntherefore asked for a downward departure or a sentence at the low end of the\n37-to-46-month range. The government disagreed. It pressed the seriousness\nof the prior sex offenses and the quickness of Sanchez-Hernandez’s illegal\nreentry after his 2017 release. Accordingly, it asked for an upward variance to\na range of 57 to 71 months. Sanchez-Hernandez added little in his allocution.\nHe admitted, “truly, I don’t regret this. In a sense, I don’t regret it because I\ncame to help my family.” (He told the probation office his son has “unspecified\nproblems with his feet,” and his son’s mother had been diagnosed with cancer.\nWhen the probation office asked for his family’s contact information to confirm\nthese facts, Sanchez-Hernandez refused to provide it.)\n The court adopted the PSR’s findings but concluded a criminal history\ncategory of V (with a range of 46 to 57 months) more accurately reflected the\nlikelihood of Sanchez-Hernandez’s recidivism. The court noted it had\npreviously sentenced Sanchez-Hernandez to 41 months for illegal reentry, only\nfor Sanchez-Hernandez to “return[ ] within about six months of having been\nreleased from that sentence for this identical crime.” “I believe he merits\ngraduated punishment,” the court said, “but it’s for his recidivism that he\n 3\n\f Case: 18-40211 Document: 00515001593 Page: 4 Date Filed: 06/19/2019\n\n\n\n No. 18-40211\nmerits additional time in jail.” So, it sentenced Sanchez-Hernandez to 48\nmonths. Defense counsel objected that the sentence was substantively\nunreasonable. Sanchez-Hernandez appealed.\n II.\n In this appeal, Sanchez-Hernandez argues for the first time that the\ndistrict court erred by treating his Texas convictions as crimes of violence and\nassigning 1 criminal history point under § 4A1.1(e). That additional point put\nhim in category IV rather than category III and increased his Guidelines range\nfrom 30–37 months to 37–46 months. Everyone agrees plain-error review\napplies.\n Rule 52 provides that “[a] plain error that affects substantial rights may\nbe considered even though it was not brought to the court’s attention.” FED. R.\nCRIM. P. 52(b). The Supreme Court has read this language to require a four-\npart showing: The defendant must show (1) that the district court committed\nan error (2) that is plain and (3) affects his substantial rights and (4) that\nfailure to correct the error would “seriously affect the fairness, integrity or\npublic reputation of judicial proceedings.” Johnson v. United States, 520 U.S.\n461, 466–67 (1997) (alteration and quotation omitted). Only then may we\ncorrect a forfeited error.\n As a threshold matter, the government concedes the first two prongs.\nBut the government cannot waive the proper interpretation of Rule 52. See\nKamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); EEOC v. Fed. Labor\nRelations Auth., 476 U.S. 19, 23 (1986) (per curiam). And it is unclear whether\nthe district court committed any “error,” let alone a plain one. 2\n\n\n 2 Plain-error review is available only for forfeitures—not waivers. Intentionally\nrelinquishing a right (waiver) “extinguish[es] an ‘error’ under Rule 52(b).” United States v.\nOlano, 507 U.S. 725, 733 (1993). Here, it’s possible Sanchez-Hernandez affirmatively\nrelinquished his right. The district court asked if “everything else [in the PSR was] correct.”\nSanchez-Hernandez said “Yes.”\n 4\n\f Case: 18-40211 Document: 00515001593 Page: 5 Date Filed: 06/19/2019\n\n\n\n No. 18-40211\n We need not address the question, however, because Sanchez-Hernandez\nfails on the third prong of the plain-error standard. Prong three requires\nSanchez-Hernandez to prove the error “affected [his] substantial rights, which\nin the ordinary case means he . . . must show a reasonable probability that, but\nfor the error, the outcome of the proceeding would have been different.”\nMolina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citation and\nquotation omitted). In Molina-Martinez, the district court stated it was\nadopting the PSR’s recommendations, sentenced the defendant at the low end\nof the (incorrect) Guidelines range, and “provided no further explanation for\nthe sentence.” Id. at 1344. Because the district court “said nothing specific\nabout why it chose the sentence” besides merely adopting the recommended\nrange, “the Guidelines served as the starting point for the sentencing and were\nthe focal point for the proceedings that followed.” Id. at 1347. In that scenario,\nthe Court held, it was unfair to require “additional evidence” that the district\ncourt might have imposed a different sentence under the correct Guidelines\nrange. Id. at 1347–48 (“The decision today simply states that courts reviewing\nsentencing errors cannot apply a categorical rule requiring additional\nevidence. . . .”).\n True, Molina-Martinez predicted erroneous Guidelines ranges will\nnormally suffice to satisfy the third prong. But the Court recognized that won’t\nalways be the case. Id. at 1346–47; see Griffith v. United States, 871 F.3d 1321,\n1338 (11th Cir. 2017) (Molina-Martinez’s “prediction [of what will normally\nsuffice] is not, however, a presumption.”). In some cases, like this one, the\ndistrict court might offer “a detailed explanation of the reasons the selected\nsentence is appropriate.” Molina-Martinez, 136 S. Ct at 1346–47. When it\ndoes so, the question remains: What was driving this judge’s decision to impose\nthis sentence for this defendant? In answering that question, we apply no\n\n\n 5\n\f Case: 18-40211 Document: 00515001593 Page: 6 Date Filed: 06/19/2019\n\n\n\n No. 18-40211\npresumptions or categorical rules. Instead, we “consider the facts and\ncircumstances of the case before” us. Id. at 1346.\n Those facts and circumstances prove there is no reasonable probability\nof prejudice. At the outset, the district court made crystal clear what was\ndriving its sentencing decision: “I believe he merits graduated punishment,\nbut it’s for his recidivism that he merits additional time in jail.” (emphasis\nadded). The court then accepted the PSR’s findings, but it concluded category\nIV “substantially under-represents the likelihood of recidivism given [Sanchez-\nHernandez] had just received a 41-month sentence.” That was insufficient, the\ndistrict court concluded, because Sanchez-Hernandez turned around and\nreentered again. So the court assigned Sanchez-Hernandez to category V, with\na range of 46 to 57 months. But it never once discussed the (erroneous) range\nunder category IV. Instead, it constantly juxtaposed its chosen sentence—48\nmonths—with the apparently insufficient prior sentence of 41 months. The\njudge did not “use[ ] the sentencing range as the beginning point to explain the\ndecision to deviate from it.” Peugh v. United States, 569 U.S. 530, 542 (2013)\n(quotation omitted). So, “the Guidelines are [not] in a real sense the basis for\nthe sentence.” Ibid. (emphasis and quotation omitted).\n If the range had been 30–37 months rather than 37–46 months, it’s\nunlikely anything would have changed. The district court would have treated\ncategory III (with its 37-month ceiling) as plainly insufficient based on its belief\nthat the earlier 41-month sentence failed to deter Sanchez-Hernandez. And\nthe court in fact believed category IV was insufficient because the defendant\nquickly reentered the United States after his most recent illegal reentry\nconviction. Nothing about the classification of his sex offenses alters that focus\non Sanchez-Hernandez’s contumacy. In fact, the court never cited those\nconvictions in explaining its chosen sentence—even though counsel had raised\narguments about them earlier. In this particular case, the district court’s\n 6\n\f Case: 18-40211 Document: 00515001593 Page: 7 Date Filed: 06/19/2019\n\n\n\n No. 18-40211\nexplanation “make[s] it clear that the judge based the sentence . . . on factors\nindependent of the Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. 3\n AFFIRMED.\n\n\n\n\n 3 Sanchez-Hernandez also argues “[t]he equities in this case . . . warrant correction of\nthe error.” Appellant’s Br. 28. In his opening brief, Sanchez-Hernandez relies on “the\nequities” under prong four of the plain-error standard, see ibid., but in his reply brief he\ndiscusses “the equities” under prong three, see Reply Br. 5. It is unclear the equities\ncommand relief for recidivist re-entry by a man with multiple convictions for sexually abusing\na child. But it doesn’t matter. Under prong three, it remains the defendant’s burden (not\nthe government’s) to prove prejudice. See Molina-Martinez, 136 S. Ct. at 1348 (discussing\nRule 52(b)). Sanchez-Hernandez cannot carry that burden here, regardless of the equities,\ngiven the district court’s reasons for its sentence.\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Agustine SANCHEZ-HERNANDEZ, Also Known as Augustin Sanchez, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40211 Document: 00515001593 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-40211\\n Fifth Circuit\\n\\n FILED\\n June 19, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff-Appellee,\\n\\nv.\\n\\nAGUSTINE SANCHEZ-HERNANDEZ, also known as Augustin Sanchez,\\n\\n Defendant-Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore JONES, HO, and OLDHAM, Circuit Judges.\\nANDREW S. OLDHAM, Circuit Judge:\\n Agustine Sanchez-Hernandez argues the district court plainly erred in\\ncalculating his Guidelines range at sentencing. That calculation was based on\\ntreating his prior state court convictions—for exposing himself to and sexually\\nassaulting a fourteen-year-old girl—as crimes of violence. We affirm.\\n I.\\n On October 17, 2017, Sanchez-Hernandez illegally entered the United\\nStates for the third time. When officers approached him, Sanchez-Hernandez\\nadmitted he had recently waded across the Rio Grande river. So the federal\\ngovernment charged him with illegally reentering the country after having\\nbeen previously removed. 8 U.S.C. § 1326(a)–(b). Sanchez-Hernandez pleaded\\nguilty on December 6, 2017.\\n\\f Case: 18-40211 Document: 00515001593 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\n Prior to the scheduled sentencing hearing, the probation office prepared\\na Presentence Report (“PSR”). It assigned an offense level of 17 and a criminal\\nhistory category of IV, which yielded a Guidelines range of 37 to 46 months in\\nprison. 1 Those calculations were based in part on Sanchez-Hernandez’s prior\\ncriminal history.\\n First, in 2010, he pleaded guilty to indecency with a child. TEX. PENAL\\nCODE § 21.11. After dancing with a fourteen-year-old girl at a banquet hall,\\nSanchez-Hernandez took her outside, began kissing her, unzipped his pants,\\nexposed himself, grabbed the girl’s hands, and put them on his penis.\\n Second, also in 2010, a Texas jury convicted Sanchez-Hernandez of\\nsexually assaulting a child based on the same incident. Id. § 22.011. After\\nforcing the girl to touch him, Sanchez-Hernandez put his penis in the girl’s\\nmouth. The state court sentenced him to concurrent two-year sentences for\\nboth offenses and required him to register as a sex offender. Upon his release\\nin 2012, the federal government removed him to Mexico.\\n Third, in 2014, Sanchez-Hernandez pleaded guilty to illegal reentry. 8\\nU.S.C. § 1326(a)–(b). Just one month after the government removed him to\\nMexico, Sanchez-Hernandez rafted across the Rio Grande back into Texas. The\\nfederal court sentenced him to 41 months in prison.\\n The PSR determined these offenses warranted 7 criminal history points.\\nIt assigned 3 points for the indecency offense and 3 points for the illegal reentry\\noffense under § 4A1.1. Then the PSR added 1 additional criminal history point\\nunder § 4A1.2(a)(2) and § 4A1.1(e) because it treated the two sex offenses as\\n\\n\\n\\n\\n 1 The PSR initially assigned an offense level of 18, which yielded a Guidelines range\\nof 41 to 51 months. But it also assigned an alternative level-17 calculation in the event the\\ndistrict court awarded a 1-point decrease for acceptance of responsibility. At sentencing, the\\ngovernment sought—and the district court granted—the additional 1-point reduction.\\n 2\\n\\f Case: 18-40211 Document: 00515001593 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\n“crimes of violence.” The addition of that 1 point bumped Sanchez-Hernandez\\nfrom criminal history category III to category IV.\\n At sentencing on February 21, 2018, the court began by asking Sanchez-\\nHernandez if he had been given “a chance to review [the PSR] with [his]\\nlawyer.” Sanchez-Hernandez agreed he had. And he had just one correction:\\nHe had been arrested by local police officers, not federal Customs and Border\\nPatrol officers, as the PSR indicated. But that was all:\\n THE COURT: Was everything else correct?\\n DEFENDANT SANCHEZ-HERNANDEZ: Yes. Yes, sir.\\n Sanchez-Hernandez’s counsel argued the prior convictions were\\n“remote,” were not “assaultive,” and overrepresented his criminal history. He\\ntherefore asked for a downward departure or a sentence at the low end of the\\n37-to-46-month range. The government disagreed. It pressed the seriousness\\nof the prior sex offenses and the quickness of Sanchez-Hernandez’s illegal\\nreentry after his 2017 release. Accordingly, it asked for an upward variance to\\na range of 57 to 71 months. Sanchez-Hernandez added little in his allocution.\\nHe admitted, “truly, I don’t regret this. In a sense, I don’t regret it because I\\ncame to help my family.” (He told the probation office his son has “unspecified\\nproblems with his feet,” and his son’s mother had been diagnosed with cancer.\\nWhen the probation office asked for his family’s contact information to confirm\\nthese facts, Sanchez-Hernandez refused to provide it.)\\n The court adopted the PSR’s findings but concluded a criminal history\\ncategory of V (with a range of 46 to 57 months) more accurately reflected the\\nlikelihood of Sanchez-Hernandez’s recidivism. The court noted it had\\npreviously sentenced Sanchez-Hernandez to 41 months for illegal reentry, only\\nfor Sanchez-Hernandez to “return[ ] within about six months of having been\\nreleased from that sentence for this identical crime.” “I believe he merits\\ngraduated punishment,” the court said, “but it’s for his recidivism that he\\n 3\\n\\f Case: 18-40211 Document: 00515001593 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\nmerits additional time in jail.” So, it sentenced Sanchez-Hernandez to 48\\nmonths. Defense counsel objected that the sentence was substantively\\nunreasonable. Sanchez-Hernandez appealed.\\n II.\\n In this appeal, Sanchez-Hernandez argues for the first time that the\\ndistrict court erred by treating his Texas convictions as crimes of violence and\\nassigning 1 criminal history point under § 4A1.1(e). That additional point put\\nhim in category IV rather than category III and increased his Guidelines range\\nfrom 30–37 months to 37–46 months. Everyone agrees plain-error review\\napplies.\\n Rule 52 provides that “[a] plain error that affects substantial rights may\\nbe considered even though it was not brought to the court’s attention.” FED. R.\\nCRIM. P. 52(b). The Supreme Court has read this language to require a four-\\npart showing: The defendant must show (1) that the district court committed\\nan error (2) that is plain and (3) affects his substantial rights and (4) that\\nfailure to correct the error would “seriously affect the fairness, integrity or\\npublic reputation of judicial proceedings.” Johnson v. United States, 520 U.S.\\n461, 466–67 (1997) (alteration and quotation omitted). Only then may we\\ncorrect a forfeited error.\\n As a threshold matter, the government concedes the first two prongs.\\nBut the government cannot waive the proper interpretation of Rule 52. See\\nKamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); EEOC v. Fed. Labor\\nRelations Auth., 476 U.S. 19, 23 (1986) (per curiam). And it is unclear whether\\nthe district court committed any “error,” let alone a plain one. 2\\n\\n\\n 2 Plain-error review is available only for forfeitures—not waivers. Intentionally\\nrelinquishing a right (waiver) “extinguish[es] an ‘error’ under Rule 52(b).” United States v.\\nOlano, 507 U.S. 725, 733 (1993). Here, it’s possible Sanchez-Hernandez affirmatively\\nrelinquished his right. The district court asked if “everything else [in the PSR was] correct.”\\nSanchez-Hernandez said “Yes.”\\n 4\\n\\f Case: 18-40211 Document: 00515001593 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\n We need not address the question, however, because Sanchez-Hernandez\\nfails on the third prong of the plain-error standard. Prong three requires\\nSanchez-Hernandez to prove the error “affected [his] substantial rights, which\\nin the ordinary case means he . . . must show a reasonable probability that, but\\nfor the error, the outcome of the proceeding would have been different.”\\nMolina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citation and\\nquotation omitted). In Molina-Martinez, the district court stated it was\\nadopting the PSR’s recommendations, sentenced the defendant at the low end\\nof the (incorrect) Guidelines range, and “provided no further explanation for\\nthe sentence.” Id. at 1344. Because the district court “said nothing specific\\nabout why it chose the sentence” besides merely adopting the recommended\\nrange, “the Guidelines served as the starting point for the sentencing and were\\nthe focal point for the proceedings that followed.” Id. at 1347. In that scenario,\\nthe Court held, it was unfair to require “additional evidence” that the district\\ncourt might have imposed a different sentence under the correct Guidelines\\nrange. Id. at 1347–48 (“The decision today simply states that courts reviewing\\nsentencing errors cannot apply a categorical rule requiring additional\\nevidence. . . .”).\\n True, Molina-Martinez predicted erroneous Guidelines ranges will\\nnormally suffice to satisfy the third prong. But the Court recognized that won’t\\nalways be the case. Id. at 1346–47; see Griffith v. United States, 871 F.3d 1321,\\n1338 (11th Cir. 2017) (Molina-Martinez’s “prediction [of what will normally\\nsuffice] is not, however, a presumption.”). In some cases, like this one, the\\ndistrict court might offer “a detailed explanation of the reasons the selected\\nsentence is appropriate.” Molina-Martinez, 136 S. Ct at 1346–47. When it\\ndoes so, the question remains: What was driving this judge’s decision to impose\\nthis sentence for this defendant? In answering that question, we apply no\\n\\n\\n 5\\n\\f Case: 18-40211 Document: 00515001593 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\npresumptions or categorical rules. Instead, we “consider the facts and\\ncircumstances of the case before” us. Id. at 1346.\\n Those facts and circumstances prove there is no reasonable probability\\nof prejudice. At the outset, the district court made crystal clear what was\\ndriving its sentencing decision: “I believe he merits graduated punishment,\\nbut it’s for his recidivism that he merits additional time in jail.” (emphasis\\nadded). The court then accepted the PSR’s findings, but it concluded category\\nIV “substantially under-represents the likelihood of recidivism given [Sanchez-\\nHernandez] had just received a 41-month sentence.” That was insufficient, the\\ndistrict court concluded, because Sanchez-Hernandez turned around and\\nreentered again. So the court assigned Sanchez-Hernandez to category V, with\\na range of 46 to 57 months. But it never once discussed the (erroneous) range\\nunder category IV. Instead, it constantly juxtaposed its chosen sentence—48\\nmonths—with the apparently insufficient prior sentence of 41 months. The\\njudge did not “use[ ] the sentencing range as the beginning point to explain the\\ndecision to deviate from it.” Peugh v. United States, 569 U.S. 530, 542 (2013)\\n(quotation omitted). So, “the Guidelines are [not] in a real sense the basis for\\nthe sentence.” Ibid. (emphasis and quotation omitted).\\n If the range had been 30–37 months rather than 37–46 months, it’s\\nunlikely anything would have changed. The district court would have treated\\ncategory III (with its 37-month ceiling) as plainly insufficient based on its belief\\nthat the earlier 41-month sentence failed to deter Sanchez-Hernandez. And\\nthe court in fact believed category IV was insufficient because the defendant\\nquickly reentered the United States after his most recent illegal reentry\\nconviction. Nothing about the classification of his sex offenses alters that focus\\non Sanchez-Hernandez’s contumacy. In fact, the court never cited those\\nconvictions in explaining its chosen sentence—even though counsel had raised\\narguments about them earlier. In this particular case, the district court’s\\n 6\\n\\f Case: 18-40211 Document: 00515001593 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40211\\nexplanation “make[s] it clear that the judge based the sentence . . . on factors\\nindependent of the Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. 3\\n AFFIRMED.\\n\\n\\n\\n\\n 3 Sanchez-Hernandez also argues “[t]he equities in this case . . . warrant correction of\\nthe error.” Appellant’s Br. 28. In his opening brief, Sanchez-Hernandez relies on “the\\nequities” under prong four of the plain-error standard, see ibid., but in his reply brief he\\ndiscusses “the equities” under prong three, see Reply Br. 5. It is unclear the equities\\ncommand relief for recidivist re-entry by a man with multiple convictions for sexually abusing\\na child. But it doesn’t matter. Under prong three, it remains the defendant’s burden (not\\nthe government’s) to prove prejudice. See Molina-Martinez, 136 S. Ct. at 1348 (discussing\\nRule 52(b)). Sanchez-Hernandez cannot carry that burden here, regardless of the equities,\\ngiven the district court’s reasons for its sentence.\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2462,"cells":{"id":{"kind":"number","value":4631334,"string":"4,631,334"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Michael Angelo ORTIZ, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Michael Ortiz"},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"17-11301"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Owen, Southwick, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"STEPHEN A. HIGGINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-11301 Document: 00515003208 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-11301 June 19, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nMICHAEL ANGELO ORTIZ,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n\\n Michael Angelo Ortiz pleaded guilty to possessing a firearm and\\nammunition as a convicted felon. On appeal, he argues that the factual basis\\nsupporting his plea was insufficient. We disagree. The factual basis\\ndemonstrated that Ortiz’s conduct satisfied all elements of the offense.\\nAccordingly, we affirm the district court’s acceptance of his guilty plea.\\nI. Proceedings\\n In June 2017, a grand jury indicted Michael Angelo Ortiz on one count:\\npossessing a firearm and ammunition as a convicted felon, in violation of 18\\nU.S.C. §§ 922(g)(1) and 924(a)(2). The indictment charged:\\n\\f Case: 17-11301 Document: 00515003208 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n On or about February 19, 2017, in the Lubbock Division of the\\n Northern District of Texas, and elsewhere, Michael Angelo Ortiz,\\n defendant, a person who had previously been convicted of a crime\\n punishable by a term of imprisonment exceeding one year,\\n knowingly possessed a firearm and ammunition in and affecting\\n interstate and foreign commerce, to wit: a Smith & Wesson, .40\\n caliber pistol, serial number PAK 7828, with ammunition.\\n\\n Pursuant to a plea agreement, Ortiz pleaded guilty to the indictment and\\nwaived his right to appeal. Ortiz made no objections to the stipulated facts\\nattached to the plea (the “Factual Resume”) and never raised any affirmative\\ndefense. A presentence report (“PSR”) was prepared.\\n The district court sentenced Ortiz to 90 months of imprisonment. The\\nsentence fell within the applicable Guidelines range of 84 to 105 months and\\nwas followed by a three-year term of supervised release.\\n On appeal, the Federal Public Defender moved for leave to withdraw and\\nfiled a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Ortiz\\nfiled a response asserting, in relevant part, that he had acted in self-defense.\\nThis court ordered that the motion to withdraw be carried with the case\\nbecause Ortiz’s counsel had failed to discuss “whether a colorable defense of\\njustification was presented.” Thereafter, Ortiz’s counsel withdrew the Anders\\nmotion and filed a short brief on the merits, arguing that the district court\\nplainly erred in accepting a guilty plea that contained an insufficient factual\\nbasis. At no point in the course of these proceedings did Ortiz move to withdraw\\nhis guilty plea.\\nII. Factual Background\\n Because the precise content of the record is central to this case, we take\\ncare to present, in detail, what was recited in the Factual Resume and in the\\nPSR.\\n\\n\\n\\n 2\\n\\fCase: 17-11301 Document: 00515003208 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n The Factual Resume reads as follows:\\n 1. Michael Angelo Ortiz admits and agrees that starting on or\\n about February 19, 2017, in the Lubbock Division of the Northern\\n District of Texas, and elsewhere, Michael Angelo Ortiz, defendant,\\n a person who had previously been convicted of a crime punishable\\n by a term of imprisonment exceeding one year, knowingly\\n possessed a firearm and ammunition in or affecting interstate or\\n foreign commerce, to wit: a Smith & Wesson, .40 caliber pistol,\\n serial number PAK7828, several rounds of ammunition, in\\n violation of Title 18, United States Code, Sections 922(g)(l) and\\n 924(a)(2).\\n\\n 2. On February 19, 2017, Ortiz was involved in an altercation\\n with an individual in Lubbock, Texas, a city within the Northern\\n District of Texas. Prior to altercation, Ortiz had been notified by\\n this individual that he was waiting outside Ortiz’s apartment\\n complex in order to speak with him. During the course of their\\n conversation, Ortiz pulled out a pack of cigarettes and offered the\\n individual a cigarette from a package where Ortiz was also storing\\n some money. Seeing Ortiz’s money, the individual attempted to\\n grab the pack of cigarettes away from Ortiz and the altercation\\n ensued. During the altercation, the individual threatened Ortiz\\n with the Smith & Wesson, bearing Serial Number PAK7828. Ortiz\\n in response grabbed the Smith & Wesson. As the individual and\\n Ortiz fought over the gun, the gun discharged and shots were fired\\n into the roof of the vehicle. Once the shots had been fired, Ortiz\\n broke away and ran. After the altercation, Ortiz barricaded\\n himself inside a nearby apartment, where Ortiz, his girlfriend, and\\n his small children resided. After several hours, Ortiz voluntarily\\n exited the apartment and surrendered to law enforcement.\\n\\n 3. Law enforcement recovered the firearm from a trash bin\\n near the apartment where Ortiz and his family resided. Ortiz’s\\n jacket was located on the ground next to the trash bin where the\\n gun was found. Ortiz admits that he possessed the Smith &\\n Wesson on February 19, 2017, in Lubbock, Texas.\\n\\n 4. [An ATF Special Agent] inspected the seized firearm and\\n determined that the firearm had been manufactured outside the\\n state of Texas. Because the firearm was manufactured outside the\\n state of Texas, the firearm traveled in interstate commerce; that\\n 3\\n\\f Case: 17-11301 Document: 00515003208 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n is, the firearm had traveled at some point from one state to another\\n or between any part of the United States and any other country.\\n\\n 5. Ortiz admits that prior to the knowing possession of the\\n firearm, he had been convicted in a court of a crime punishable by\\n imprisonment for a term in excess of one year.\\n\\n 6. The defendant agrees that the defendant committed all the\\n essential elements of the offense. This factual résumé is not\\n intended to be a complete accounting of all the facts and events\\n related to the offense charged in this case. The limited purpose of\\n this statement of facts is to demonstrate that a factual basis exists\\n to support the defendant’s guilty plea to Count One of the\\n indictment.\\n\\nThe PSR tells the story from a slightly different perspective, as follows:\\n A [law enforcement] officer heard several gun shots. He then\\n witnessed Ortiz running, with his jacket in his hand, as if he was\\n concealing something inside the jacket. The officer then saw the\\n defendant go near a trash bin where a gun was later recovered.\\n ...\\n Ortiz ran into Apartment No. 2813 and barricaded himself inside.\\n ...\\n Once police arrived, including SWAT team members, the\\n defendant refused to obey police commands and leave the\\n apartment. As a result, a police standoff ensued, which lasted more\\n than 1 hour.\\n ...\\n Eventually, after officers instructed the defendant to leave the\\n apartment over the police public address system, Ortiz\\n surrendered and exited the apartment while carrying one of his\\n infant children. The defendant was arrested without incident.\\n ...\\n Ortiz was later interviewed by officers. He advised officers that he\\n was supposed to meet two people and go to a cemetery. So, he met\\n these people outside at their vehicle. While talking with them, he\\n removed a package of cigarettes, which the driver attempted to get\\n from the defendant. Shots were fired. Ortiz ran back into his\\n apartment out of fear. When interviewing officers confronted him\\n about his story contradicting other witness statements, the\\n defendant advised he was meeting a new narcotics contact, when\\n 4\\n\\f Case: 17-11301 Document: 00515003208 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n the driver pulled a firearm on the defendant. A struggle ensued\\n over the firearms, and shots were fired into the vehicle. He then\\n ran back to his apartment and discarded the gun in some bushes\\n on the way to his apartment.\\n ...\\n The firearm, a Smith & Wesson[,] . . . was recovered by police from\\n a trash bin near the defendant’s apartment . . . On the ground next\\n to this trash can, officers found Ortiz’s jacket, which had also been\\n discarded.\\n ...\\n Ortiz was arrested . . . at his mother’s [residence]. A subsequent\\n search of the residence revealed 17.87 grams of methamphetamine\\n and a loaded [Glock pistol]. The firearm was located under a\\n bedroom mattress. . . . Ortiz advised he had received the Glock\\n from a friend, and another friend was going to purchase the Glock\\n for $1,000.\\n\\nIII. Standard of Review\\n Absent a defendant’s objection in district court, this court reviews the\\nfactual basis of a guilty plea for plain error. United States v. Trejo, 610 F.3d\\n308, 313 (5th Cir. 2010).\\n On plain-error review, a defendant “must first establish an error.”\\nUnited States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019). Second, the\\ndefendant must show that the error is clear or obvious. Id. Third, the defendant\\nmust prove that the error affected the defendant’s substantial rights. Id. “To\\nsatisfy this third condition, the defendant ordinarily must show a reasonable\\nprobability that, but for the error, the outcome of the proceeding would have\\nbeen different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05\\n(2018) (internal quotation omitted). “Once those three conditions have been\\nmet, ‘the court of appeals should exercise its discretion to correct the forfeited\\nerror if the error seriously affects the fairness, integrity or public reputation of\\njudicial proceedings.’” Id. at 1905 (quoting Molina-Martinez v. United States,\\n136 S. Ct. 1338, 1343 (2016)).\\n\\n\\n 5\\n\\f Case: 17-11301 Document: 00515003208 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nIV. Discussion\\n Ortiz argues that the factual basis for his plea does not support his\\nconviction. We begin by addressing two threshold matters: first, which parts of\\nthe record we should consult for factual information and second, whether\\nOrtiz’s appeal waiver forecloses his right to challenge the sufficiency of his\\nguilty plea.\\n A. Relevant Sources of Information\\n The Advisory Committee’s Notes to Federal Rule of Criminal Procedure\\n11 make clear that a district court may use sources other than the defendant’s\\nadmissions to confirm that a factual basis exists to support those admissions.\\nSee Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendments (“The\\ncourt should satisfy itself, by inquiry of the defendant or the attorney for the\\ngovernment, or by examining the presentence report, or otherwise, that the\\nconduct which the defendant admits constitutes the offense charged in the\\nindictment . . . .”); see also McCarthy v. United States, 394 U.S. 459, 463 n.6\\n(1969) (acknowledging that “the Advisory Committee suggests three methods\\nof determining that a factual basis exists for a guilty plea”); Sassoon v. United\\nStates, 561 F.2d 1154, 1159 (5th Cir. 1977) (noting that “the Advisory\\nCommittee’s Notes accompanying Rule 11 list several means of satisfying the\\nfactual basis”).\\n In Trejo, this court confirmed that the same scope of sources may be\\nconsidered by the appellate reviewer: “In assessing factual sufficiency under\\nthe plain error standard, we may look beyond those facts admitted by the\\ndefendant during the plea colloquy and scan the entire record for facts\\nsupporting his conviction.” 610 F.3d at 313 (citing United States v. Tullos, 356\\nF. App’x 727, 727–28 (5th Cir. 2009)); see also Tullos, 356 F. App’x at 728\\n(holding that “[t]he plea colloquy, the PSR findings, and the district court’s\\n\\n\\n 6\\n\\f Case: 17-11301 Document: 00515003208 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nstatements at sentencing sufficiently support the determination that [the\\ndefendant’s] conduct met all of the elements of the [offense]”).\\n Accordingly, we consider the entire record in assessing the sufficiency of\\nthe factual basis.\\n B. Appeal Waiver\\n\\n The government presses Ortiz’s appeal waiver. But our court has\\nrepeatedly held that “even if there is an unconditional plea of guilty or a waiver\\nof appeal provision in a plea agreement, this Court has the power to review if\\nthe factual basis for the plea fails to establish an element of the offense which\\nthe defendant pled guilty to appeal waivers in that context.” United States v.\\nBaymon, 312 F.3d 725, 727 (5th Cir. 2002); see also United States v. Alvarado-\\nCasas, 715 F.3d 945, 951 (5th Cir. 2013) (noting that the defendant could\\n“challenge the factual basis underlying his guilty plea notwithstanding his\\nunconditional appeal waiver”). Accordingly, we proceed to the merits.\\n C. Ortiz’s Argument\\n Ortiz argues that the factual basis does not support his conviction. But\\nhe fails to specify whether he means that the factual basis (1) does not\\nestablish the elements of the offense, or (2) establishes the elements of the\\noffense but also establishes an affirmative justification defense. That\\ndistinction decides his case. While only the former supports reversal, Ortiz\\narguably shows only the latter.\\n We first explore the relationship between offense elements and\\naffirmative defenses generally.\\n D. Elements and Affirmative Defenses\\n Hornbook criminal law distinguishes between offense elements and\\naffirmative defenses. See Paul H. Robinson, Criminal Law Defenses: A\\nSystematic Analysis, 82 Colum. L. Rev. 199, 291 n.164 (1982) (“The distinction\\n\\n 7\\n\\f Case: 17-11301 Document: 00515003208 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nbetween offenses and defenses is perhaps the most basic distinction in criminal\\nlaw that lawyers . . . recognize.”). The distinction has constitutional\\nsignificance; while “the Due Process Clause requires the prosecution to prove\\nbeyond a reasonable doubt all of the elements included in the definition of the\\noffense of which the defendant is charged[,] . . . [p]roof of the nonexistence of\\nall affirmative defenses has never been constitutionally required.” Patterson v.\\nNew York, 432 U.S. 197, 210 (1977); see also Smith v. United States, 568 U.S.\\n106, 110 (2013) (“Where [an affirmative defense] ‘excuse[s] conduct that would\\notherwise be punishable,’ but ‘does not controvert any of the elements of the\\noffense itself,’ the Government has no constitutional duty to overcome the\\ndefense beyond a reasonable doubt.”) (quoting Dixon v. United States, 548 U.S.\\n1, 6 (2006)).\\n As Patterson and Smith reflect, the offense-defense distinction is\\ncomplicated when a defense “controvert[s]” an offense element. Smith, 568 U.S.\\nat 110 (citing Dixon, 548 U.S. at 6); see also id. (“The State is foreclosed from\\nshifting the burden of proof to the defendant only ‘when an affirmative\\ndefense . . . negate[s] an element of the crime.’”) (quoting Martin v. Ohio, 480\\nU.S. 228, 237 (1987) (Powell, J., dissenting)). Justification defenses such as\\nduress and necessity are not, typically, element-negating. See Dixon, 548 U.S.\\nat 6 (“The duress defense, like the defense of necessity . . . may excuse conduct\\nthat would otherwise be punishable, but the existence of duress normally does\\nnot controvert any of the elements of the offense itself.”).\\n With that framework in mind, we first examine whether the factual basis\\nin this case establishes the elements of the offense. Then we assess whether it\\nmight provide for an affirmative defense that negates an offense element.\\nFinally, we explore the implications of those results on whether the factual\\nbasis was sufficient to support conviction.\\n\\n\\n 8\\n\\f Case: 17-11301 Document: 00515003208 Page: 9 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n E. Offense Elements and the Justification Defense in This Case\\n The elements of the offense are as follows:\\n (1) that the defendant knowingly possessed a firearm, as charged\\n in the indictment;\\n\\n (2) that before the defendant possessed that firearm, the defendant\\n had been convicted in a court of a crime punishable by\\n imprisonment for a term in excess of one year; and\\n\\n (3) that the firearm possessed traveled in and affected interstate\\n commerce.\\n\\nSee 18 U.S.C. §§ 922(g)(1) and 924(a)(2); see also Fifth Circuit Pattern Jury\\nInstructions (Criminal Cases) § 2.43D (2015). Ortiz has conceded or waived his\\nchallenge to the second and third elements. 1 He focuses only on the first\\nelement—knowing possession.\\n Ortiz hints that the brevity of his possession rendered it short of what is\\nrequired under the first element. The caselaw is against him. See United States\\nv. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary\\nis immaterial.”); see also United States v. Matthews, 520 F.3d 806, 811 (7th Cir.\\n2008) (“[M]erely holding a firearm for a brief period of time is sufficient to\\nconstitute possession within the meaning of section 922.”); United States v.\\nJackson, 598 F.3d 340, 351 (7th Cir. 2010) (“[T]he legislative history of 18\\nU.S.C. § 922 indicates that Congress sought to prohibit even a felon’s brief\\npossession of a firearm.”).\\n With that aside, the record plainly establishes that Ortiz knowingly\\npossessed a firearm. The Factual Resume and the PSR reflect that Ortiz, a\\nconvicted felon, grabbed a Smith & Wesson that was manufactured out-of-\\n\\n\\n\\n\\n 1Ortiz’s brief concedes that he is a “convicted felon” and is silent on the interstate\\ncommerce requirement. “[I]ssues not briefed are waived.” United States v. Narviz-Guerra,\\n148 F.3d 530, 538 (5th Cir. 1998).\\n 9\\n\\f Case: 17-11301 Document: 00515003208 Page: 10 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nstate, ran while holding it, and then discarded it in a nearby trashcan.\\nAccordingly, he knowingly possessed it.\\n The factual basis establishes all three elements of the offense.\\n Ortiz insists that his possession was justified because he was acting in\\nself-defense or under duress. In this court, there are four showings a defendant\\nmust make in order to prevail on a justification defense. 2 What matters,\\nhowever, is not whether Ortiz made these showings but whether the defense\\nis element-negating. We begin our analysis of that question with a case, United\\nStates v. Parker, that predates the express recognition of the justification\\ndefense in the felon-in-possession context. 566 F.2d 1304 (5th Cir. 1978).\\n In Parker, this court examined a conviction under 26 U.S.C. § 5861, a\\nstatute prohibiting knowing possession of unregistered firearms. Id. at 1305.\\nAt trial, the defendant, Parker, admitted that he retrieved an unloaded\\nshotgun from another room after an aggressive acquaintance cut him on the\\nnose with a pocketknife. Id. When jury members asked whether they should\\nconsider the reason for Parker’s shotgun possession, the trial judge responded,\\n“No.” Id. On appeal, Parker challenged that instruction and argued,\\n\\n\\n\\n\\n 2 This court “has established the four elements of the justification defense” as follows:\\n (1) that defendant was under an unlawful and “present, imminent, and\\n impending [threat] of such a nature as to induce a well-grounded\\n apprehension of death or serious bodily injury”;\\n (2) that defendant had not “recklessly or negligently placed himself in a\\n situation in which it was probable that he would be [forced to choose the\\n criminal conduct]”;\\n (3) that defendant had no “reasonable legal alternative to violating the\\n law; a chance both to refuse to do the criminal act and also to avoid the\\n threatened harm”; and\\n (4) “that a direct causal relationship may be reasonably anticipated\\n between the [criminal] action taken and the avoidance of the\\n [threatened] harm.”\\n United States v. Harper, 802 F.2d 115, 117 (5th Cir. 1986) (quoting United States v.\\n Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982)).\\n 10\\n\\f Case: 17-11301 Document: 00515003208 Page: 11 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nessentially, that in order to prove “knowing” possession, the government had\\nto prove that his possession was not justified.\\n This court disagreed. Opining on the meaning of “knowing possession”\\nin this context, we explained:\\n Defendant contends that ‘knowing’ possession means possession\\n not justified by some innocent reason. In effect, defendant’s\\n interpretation would require the Government to prove, as an\\n element of the offense under § 5861(d), not only that defendant\\n willfully possessed the weapon, but that he had no good reason to\\n justify his possession. The plain reading of the statute and the\\n decided cases are to the contrary. The Government need only\\n show that defendant willfully and consciously possessed an item\\n which he knew to be a firearm.\\n\\nId. at 1306. The court ultimately concluded that it “need not decide” whether\\n“a defendant may ever in defense allege some justification based on the\\ncircumstances attending his illegal possession of an unregistered firearm”\\nbecause Parker was, factually, ineligible for it—he had continued possessing\\nthe gun after the threat subsided. Id. (emphasis added).\\n Despite Parker’s fact-bound conclusion, the case reinforces the\\ndistinction between an “element of the offense” and a justification defense,\\nconcluding that justification would not negate any element of the crime.\\n On the same day Parker was argued, the same panel heard argument in\\nUnited States v. Hammons, 566 F.2d 1301 (5th Cir. 1978), vacated and\\nremanded on other grounds, 439 U.S. 810 (1978). In Hammons, the defendant\\nwas convicted under 18 U.S.C. § 922(h) for illegally receiving a firearm as a\\nconvicted felon. Id. at 1302. The defendant, as in Parker, argued that his\\nreceipt was justified under the circumstances. Id.\\n Again on the unique facts of the case, the court disagreed. Id. at 1304\\n(“We express no opinion on whether a different set of facts might support the\\njudicial creation of such a defense to § 922(h).”). The court in Hammons took\\n\\n 11\\n\\f Case: 17-11301 Document: 00515003208 Page: 12 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nthe opportunity to emphasize, however, that knowing and justified receipt (as\\nopposed to just knowing receipt) was not an element of the offense:\\n Defendant does not contend that the Government must prove, as\\n an element of the offense under § 922(h), that defendant received\\n the gun without legal excuse . . . This argument as to a similar\\n statute was rejected in [Parker], . . . [where we] held that the\\n Government need only show that defendant willfully and\\n consciously possessed what he knew to be a firearm.\\n\\nId. at 1303 & n.3.\\n Parker and Hammond compel the conclusion that Ortiz satisfied the\\nknowing possession element when he grabbed the gun and ran with it.\\nWhether he did so under duress or in self-defense does not negate this offense\\nelement.\\n The case on which Ortiz relies for the contrary position, United States v.\\nPanter, 688 F.2d 268 (5th Cir. 1982), is unavailing. There, defendant Lester\\nPanter was convicted under the predecessor to § 922(g). Id. at 269. 3 On appeal,\\nhe argued that “the jury should have been allowed to consider his self-defense\\ntheory,” which the district court had failed to include in its instructions. Id.\\n This court summarized the case’s remarkable facts, in the light most\\nfavorable to Panter, 4 as follows:\\n Panter was tending bar at the Roadrunner Lounge in Jackson\\n County, Mississippi, on the evening of March 28, 1980. Bud Lins,\\n a convicted murderer, was present and had been drinking heavily.\\n He approached Panter after a brief argument between the two and\\n stated: “Well, you ain’t done me right. I’m going to kill you.” Lins\\n forthwith set out to keep this promise. He brandished a\\n pocketknife and stabbed Panter in the abdomen. But Panter did\\n not succumb easily; he began to fight back. He soon found himself\\n\\n\\n 3 See United States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005) (describing 18 U.S.C.\\n§ 1202(a) as “a predecessor” of § 922(g)).\\n 4 “[B]ecause error is alleged in the jury instructions, we must view the facts in the\\n\\nlight most favorable to him.” Panter, 688 F.2d at 269 (citing United States v. Young, 464 F.2d\\n160, 164 (5th Cir. 1972)).\\n 12\\n\\f Case: 17-11301 Document: 00515003208 Page: 13 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n on the floor beneath his assailant, however, and he reached\\n underneath the bar for a club that he knew was kept there. At this\\n point providence intervened. Panter’s hand fell not upon the\\n intended club, but rather upon a pistol. Three shots subdued Lins,\\n who died the next day.\\n\\n Immediately after the shooting, Panter placed the pistol on the\\n bar, where it was later found by the police. The gun belonged to an\\n employee named Judy, who later married Panter. He never\\n touched it either before or after the fateful encounter with Mr.\\n Lins.\\n\\nId. at 269. Crucially, “Panter admitted possessing the gun for the short time\\nnecessary to defend himself from Lins.” Id. at 270. He sought only to “convince\\nthe jury that he possessed the gun only then and only in self-defense.” Id.\\n Panter squarely presented the question that had escaped scrutiny in\\nParker and Hammons: “whether the existence of exigent circumstances or an\\nemergency is a defense to a firearms possession charge.” Id. at 270–71. The\\nPanter court first noted that the statutory language “prohibits convicted felons\\nin absolute terms from possessing firearms,” with “no express exemption for\\npossession in self-defense or for any other emergency.” Id. at 271. But, the court\\nobserved, “[W]e must be mindful that ‘Congress in enacting criminal statutes\\nlegislates against a background of Anglo-Saxon common law . . . .’” Id. (quoting\\nUnited States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). And “[p]art of this\\ncommon law is the doctrine of self-defense.” Id.\\n Accordingly, Panter concluded:\\n [W]e reject the government’s argument that the proscription of\\n § 1202(a)(1) is absolute and admits of no self-defense exception. We\\n hold today that where a convicted felon, reacting out of a\\n reasonable fear for the life or safety of himself, in the actual,\\n physical course of a conflict that he did not provoke, takes\\n temporary possession of a firearm for the purpose or in the course\\n of defending himself, he is not guilty of violating § 1202(a)(1).\\n\\n\\n 13\\n\\f Case: 17-11301 Document: 00515003208 Page: 14 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nId. at 271–72. As later cases have recognized, Panter stands for the “general\\navailability of common-law defenses” to a felon-in-possession charge. United\\nStates v. Gant, 691 F.2d 1159, 1161 (5th Cir. 1982) (citing Panter, 688 F.2d\\n268); see also United States v. Anderson, 885 F.2d 1248, 1254 (5th Cir. 1989)\\n(“[I]n [Panter], we created a self-defense exception to the offense of possession\\nof a pistol by a felon . . . .”). But Panter did not purport to disturb previous\\nauthorities holding that justification does not negate any element of the\\noffense.\\n For reasons explained below, we need not resolve today whether the\\nfactual basis in this case contains a viable justification defense. Assuming\\narguendo that it does, Ortiz’s conviction stands.\\n F. Whether the Factual Basis Was Insufficient If It Established\\n Justified Possession\\n\\n This court has not yet decided whether a district court errs in accepting\\na guilty plea when the factual basis contains an affirmative defense that does\\nnot negate any offense element. 5\\n Our cases have generally approached post-plea sufficiency challenges by\\ncomparing the factual basis to the offense elements. We have not taken it upon\\nourselves, nor required district courts, to scan for possible affirmative defenses.\\nSee, e.g., United States v. Crain, 877 F.3d 637, 645 (5th Cir. 2017) (“To\\ndetermine whether a defendant’s factual basis is sufficient to support his guilty\\nplea, the district court must examine each element of the offense charged.”)\\n(cleaned up); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (“The\\n\\n\\n\\n 5 We emphasize that this case is confined by the non-element-negating nature of the\\njustification defense. Parker, 566 F.2d at 1306; Hammons, 566 F.2d at 1303. We also\\nacknowledge the possibility that a justification defense might negate an offense element in a\\nunique and different context. See Dixon v. United States, 548 U.S. 1, 7 & n.4 (2006) (“[T]here\\nmay be crimes where the nature of the mens rea would require the Government to disprove\\nthe existence of duress beyond a reasonable doubt.”).\\n 14\\n\\f Case: 17-11301 Document: 00515003208 Page: 15 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nrecord must reveal specific factual allegations supporting each element of the\\noffense.”); Marek, 238 F.3d at 315 (directing trial courts to compare “(1) the\\nconduct to which the defendant admits with (2) the elements of the offense\\ncharged in the indictment or information”).\\n In United States v. Smith, the Second Circuit explicitly endorsed that\\napproach:\\n [O]nce a defendant has admitted to all the elements of an offense,\\n the district court is not required to exercise discretion under [Rule\\n 11] to reopen its inquiry into the factual basis for the guilty plea in\\n order to explore a possible defense of justification, at least where\\n justification negates none of the offense elements.\\n\\n160 F.3d 117, 123 (2d Cir. 1998).\\n Other circuits appear to do the same. See Dismuke v. United States, 864\\nF.2d 106, 107 (11th Cir. 1989) (“Nothing in Rule 11 requires the trial judge to\\ninform the defendant of every possible defense he may have.”); United States\\nv. Luna-Munoz, 234 F. App’x 762 (9th Cir. 2007) (“Rule 11 of the Federal Rules\\nof Criminal Procedure does not require a district court to inform the defendant\\nof potential justification defenses—or to rule them out—before accepting a\\nguilty plea.”); United States v. Lumpkins, 845 F.2d 1444, 1451 (7th Cir. 1988)\\n(“The defendant’s position in this case would go too far toward converting plea\\nhearings into law school seminars on possible defenses and mini-trials on\\nquestions of factual guilt.”); see also 1A Charles Alan Wright, et al., Federal\\nPractice and Procedure § 179 (4th ed. 2011) (“There need not be a factual basis\\nfor something that is not an element of the offense charged.”)\\n We follow their lead. Even if the factual basis here revealed that Ortiz’s\\npossession were justified, it nonetheless established that his conduct satisfied\\nevery element of the offense. Accordingly, the district court did not err in\\naccepting the plea.\\n AFFIRMED.\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408587/\", \"author_raw\": \"STEPHEN A. HIGGINSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631334/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Michael Angelo ORTIZ, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11301 Document: 00515003208 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-11301 June 19, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nMICHAEL ANGELO ORTIZ,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n\n Michael Angelo Ortiz pleaded guilty to possessing a firearm and\nammunition as a convicted felon. On appeal, he argues that the factual basis\nsupporting his plea was insufficient. We disagree. The factual basis\ndemonstrated that Ortiz’s conduct satisfied all elements of the offense.\nAccordingly, we affirm the district court’s acceptance of his guilty plea.\nI. Proceedings\n In June 2017, a grand jury indicted Michael Angelo Ortiz on one count:\npossessing a firearm and ammunition as a convicted felon, in violation of 18\nU.S.C. §§ 922(g)(1) and 924(a)(2). The indictment charged:\n\f Case: 17-11301 Document: 00515003208 Page: 2 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\n On or about February 19, 2017, in the Lubbock Division of the\n Northern District of Texas, and elsewhere, Michael Angelo Ortiz,\n defendant, a person who had previously been convicted of a crime\n punishable by a term of imprisonment exceeding one year,\n knowingly possessed a firearm and ammunition in and affecting\n interstate and foreign commerce, to wit: a Smith & Wesson, .40\n caliber pistol, serial number PAK 7828, with ammunition.\n\n Pursuant to a plea agreement, Ortiz pleaded guilty to the indictment and\nwaived his right to appeal. Ortiz made no objections to the stipulated facts\nattached to the plea (the “Factual Resume”) and never raised any affirmative\ndefense. A presentence report (“PSR”) was prepared.\n The district court sentenced Ortiz to 90 months of imprisonment. The\nsentence fell within the applicable Guidelines range of 84 to 105 months and\nwas followed by a three-year term of supervised release.\n On appeal, the Federal Public Defender moved for leave to withdraw and\nfiled a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Ortiz\nfiled a response asserting, in relevant part, that he had acted in self-defense.\nThis court ordered that the motion to withdraw be carried with the case\nbecause Ortiz’s counsel had failed to discuss “whether a colorable defense of\njustification was presented.” Thereafter, Ortiz’s counsel withdrew the Anders\nmotion and filed a short brief on the merits, arguing that the district court\nplainly erred in accepting a guilty plea that contained an insufficient factual\nbasis. At no point in the course of these proceedings did Ortiz move to withdraw\nhis guilty plea.\nII. Factual Background\n Because the precise content of the record is central to this case, we take\ncare to present, in detail, what was recited in the Factual Resume and in the\nPSR.\n\n\n\n 2\n\fCase: 17-11301 Document: 00515003208 Page: 3 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\n The Factual Resume reads as follows:\n 1. Michael Angelo Ortiz admits and agrees that starting on or\n about February 19, 2017, in the Lubbock Division of the Northern\n District of Texas, and elsewhere, Michael Angelo Ortiz, defendant,\n a person who had previously been convicted of a crime punishable\n by a term of imprisonment exceeding one year, knowingly\n possessed a firearm and ammunition in or affecting interstate or\n foreign commerce, to wit: a Smith & Wesson, .40 caliber pistol,\n serial number PAK7828, several rounds of ammunition, in\n violation of Title 18, United States Code, Sections 922(g)(l) and\n 924(a)(2).\n\n 2. On February 19, 2017, Ortiz was involved in an altercation\n with an individual in Lubbock, Texas, a city within the Northern\n District of Texas. Prior to altercation, Ortiz had been notified by\n this individual that he was waiting outside Ortiz’s apartment\n complex in order to speak with him. During the course of their\n conversation, Ortiz pulled out a pack of cigarettes and offered the\n individual a cigarette from a package where Ortiz was also storing\n some money. Seeing Ortiz’s money, the individual attempted to\n grab the pack of cigarettes away from Ortiz and the altercation\n ensued. During the altercation, the individual threatened Ortiz\n with the Smith & Wesson, bearing Serial Number PAK7828. Ortiz\n in response grabbed the Smith & Wesson. As the individual and\n Ortiz fought over the gun, the gun discharged and shots were fired\n into the roof of the vehicle. Once the shots had been fired, Ortiz\n broke away and ran. After the altercation, Ortiz barricaded\n himself inside a nearby apartment, where Ortiz, his girlfriend, and\n his small children resided. After several hours, Ortiz voluntarily\n exited the apartment and surrendered to law enforcement.\n\n 3. Law enforcement recovered the firearm from a trash bin\n near the apartment where Ortiz and his family resided. Ortiz’s\n jacket was located on the ground next to the trash bin where the\n gun was found. Ortiz admits that he possessed the Smith &\n Wesson on February 19, 2017, in Lubbock, Texas.\n\n 4. [An ATF Special Agent] inspected the seized firearm and\n determined that the firearm had been manufactured outside the\n state of Texas. Because the firearm was manufactured outside the\n state of Texas, the firearm traveled in interstate commerce; that\n 3\n\f Case: 17-11301 Document: 00515003208 Page: 4 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\n is, the firearm had traveled at some point from one state to another\n or between any part of the United States and any other country.\n\n 5. Ortiz admits that prior to the knowing possession of the\n firearm, he had been convicted in a court of a crime punishable by\n imprisonment for a term in excess of one year.\n\n 6. The defendant agrees that the defendant committed all the\n essential elements of the offense. This factual résumé is not\n intended to be a complete accounting of all the facts and events\n related to the offense charged in this case. The limited purpose of\n this statement of facts is to demonstrate that a factual basis exists\n to support the defendant’s guilty plea to Count One of the\n indictment.\n\nThe PSR tells the story from a slightly different perspective, as follows:\n A [law enforcement] officer heard several gun shots. He then\n witnessed Ortiz running, with his jacket in his hand, as if he was\n concealing something inside the jacket. The officer then saw the\n defendant go near a trash bin where a gun was later recovered.\n ...\n Ortiz ran into Apartment No. 2813 and barricaded himself inside.\n ...\n Once police arrived, including SWAT team members, the\n defendant refused to obey police commands and leave the\n apartment. As a result, a police standoff ensued, which lasted more\n than 1 hour.\n ...\n Eventually, after officers instructed the defendant to leave the\n apartment over the police public address system, Ortiz\n surrendered and exited the apartment while carrying one of his\n infant children. The defendant was arrested without incident.\n ...\n Ortiz was later interviewed by officers. He advised officers that he\n was supposed to meet two people and go to a cemetery. So, he met\n these people outside at their vehicle. While talking with them, he\n removed a package of cigarettes, which the driver attempted to get\n from the defendant. Shots were fired. Ortiz ran back into his\n apartment out of fear. When interviewing officers confronted him\n about his story contradicting other witness statements, the\n defendant advised he was meeting a new narcotics contact, when\n 4\n\f Case: 17-11301 Document: 00515003208 Page: 5 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\n the driver pulled a firearm on the defendant. A struggle ensued\n over the firearms, and shots were fired into the vehicle. He then\n ran back to his apartment and discarded the gun in some bushes\n on the way to his apartment.\n ...\n The firearm, a Smith & Wesson[,] . . . was recovered by police from\n a trash bin near the defendant’s apartment . . . On the ground next\n to this trash can, officers found Ortiz’s jacket, which had also been\n discarded.\n ...\n Ortiz was arrested . . . at his mother’s [residence]. A subsequent\n search of the residence revealed 17.87 grams of methamphetamine\n and a loaded [Glock pistol]. The firearm was located under a\n bedroom mattress. . . . Ortiz advised he had received the Glock\n from a friend, and another friend was going to purchase the Glock\n for $1,000.\n\nIII. Standard of Review\n Absent a defendant’s objection in district court, this court reviews the\nfactual basis of a guilty plea for plain error. United States v. Trejo, 610 F.3d\n308, 313 (5th Cir. 2010).\n On plain-error review, a defendant “must first establish an error.”\nUnited States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019). Second, the\ndefendant must show that the error is clear or obvious. Id. Third, the defendant\nmust prove that the error affected the defendant’s substantial rights. Id. “To\nsatisfy this third condition, the defendant ordinarily must show a reasonable\nprobability that, but for the error, the outcome of the proceeding would have\nbeen different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05\n(2018) (internal quotation omitted). “Once those three conditions have been\nmet, ‘the court of appeals should exercise its discretion to correct the forfeited\nerror if the error seriously affects the fairness, integrity or public reputation of\njudicial proceedings.’” Id. at 1905 (quoting Molina-Martinez v. United States,\n136 S. Ct. 1338, 1343 (2016)).\n\n\n 5\n\f Case: 17-11301 Document: 00515003208 Page: 6 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nIV. Discussion\n Ortiz argues that the factual basis for his plea does not support his\nconviction. We begin by addressing two threshold matters: first, which parts of\nthe record we should consult for factual information and second, whether\nOrtiz’s appeal waiver forecloses his right to challenge the sufficiency of his\nguilty plea.\n A. Relevant Sources of Information\n The Advisory Committee’s Notes to Federal Rule of Criminal Procedure\n11 make clear that a district court may use sources other than the defendant’s\nadmissions to confirm that a factual basis exists to support those admissions.\nSee Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendments (“The\ncourt should satisfy itself, by inquiry of the defendant or the attorney for the\ngovernment, or by examining the presentence report, or otherwise, that the\nconduct which the defendant admits constitutes the offense charged in the\nindictment . . . .”); see also McCarthy v. United States, 394 U.S. 459, 463 n.6\n(1969) (acknowledging that “the Advisory Committee suggests three methods\nof determining that a factual basis exists for a guilty plea”); Sassoon v. United\nStates, 561 F.2d 1154, 1159 (5th Cir. 1977) (noting that “the Advisory\nCommittee’s Notes accompanying Rule 11 list several means of satisfying the\nfactual basis”).\n In Trejo, this court confirmed that the same scope of sources may be\nconsidered by the appellate reviewer: “In assessing factual sufficiency under\nthe plain error standard, we may look beyond those facts admitted by the\ndefendant during the plea colloquy and scan the entire record for facts\nsupporting his conviction.” 610 F.3d at 313 (citing United States v. Tullos, 356\nF. App’x 727, 727–28 (5th Cir. 2009)); see also Tullos, 356 F. App’x at 728\n(holding that “[t]he plea colloquy, the PSR findings, and the district court’s\n\n\n 6\n\f Case: 17-11301 Document: 00515003208 Page: 7 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nstatements at sentencing sufficiently support the determination that [the\ndefendant’s] conduct met all of the elements of the [offense]”).\n Accordingly, we consider the entire record in assessing the sufficiency of\nthe factual basis.\n B. Appeal Waiver\n\n The government presses Ortiz’s appeal waiver. But our court has\nrepeatedly held that “even if there is an unconditional plea of guilty or a waiver\nof appeal provision in a plea agreement, this Court has the power to review if\nthe factual basis for the plea fails to establish an element of the offense which\nthe defendant pled guilty to appeal waivers in that context.” United States v.\nBaymon, 312 F.3d 725, 727 (5th Cir. 2002); see also United States v. Alvarado-\nCasas, 715 F.3d 945, 951 (5th Cir. 2013) (noting that the defendant could\n“challenge the factual basis underlying his guilty plea notwithstanding his\nunconditional appeal waiver”). Accordingly, we proceed to the merits.\n C. Ortiz’s Argument\n Ortiz argues that the factual basis does not support his conviction. But\nhe fails to specify whether he means that the factual basis (1) does not\nestablish the elements of the offense, or (2) establishes the elements of the\noffense but also establishes an affirmative justification defense. That\ndistinction decides his case. While only the former supports reversal, Ortiz\narguably shows only the latter.\n We first explore the relationship between offense elements and\naffirmative defenses generally.\n D. Elements and Affirmative Defenses\n Hornbook criminal law distinguishes between offense elements and\naffirmative defenses. See Paul H. Robinson, Criminal Law Defenses: A\nSystematic Analysis, 82 Colum. L. Rev. 199, 291 n.164 (1982) (“The distinction\n\n 7\n\f Case: 17-11301 Document: 00515003208 Page: 8 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nbetween offenses and defenses is perhaps the most basic distinction in criminal\nlaw that lawyers . . . recognize.”). The distinction has constitutional\nsignificance; while “the Due Process Clause requires the prosecution to prove\nbeyond a reasonable doubt all of the elements included in the definition of the\noffense of which the defendant is charged[,] . . . [p]roof of the nonexistence of\nall affirmative defenses has never been constitutionally required.” Patterson v.\nNew York, 432 U.S. 197, 210 (1977); see also Smith v. United States, 568 U.S.\n106, 110 (2013) (“Where [an affirmative defense] ‘excuse[s] conduct that would\notherwise be punishable,’ but ‘does not controvert any of the elements of the\noffense itself,’ the Government has no constitutional duty to overcome the\ndefense beyond a reasonable doubt.”) (quoting Dixon v. United States, 548 U.S.\n1, 6 (2006)).\n As Patterson and Smith reflect, the offense-defense distinction is\ncomplicated when a defense “controvert[s]” an offense element. Smith, 568 U.S.\nat 110 (citing Dixon, 548 U.S. at 6); see also id. (“The State is foreclosed from\nshifting the burden of proof to the defendant only ‘when an affirmative\ndefense . . . negate[s] an element of the crime.’”) (quoting Martin v. Ohio, 480\nU.S. 228, 237 (1987) (Powell, J., dissenting)). Justification defenses such as\nduress and necessity are not, typically, element-negating. See Dixon, 548 U.S.\nat 6 (“The duress defense, like the defense of necessity . . . may excuse conduct\nthat would otherwise be punishable, but the existence of duress normally does\nnot controvert any of the elements of the offense itself.”).\n With that framework in mind, we first examine whether the factual basis\nin this case establishes the elements of the offense. Then we assess whether it\nmight provide for an affirmative defense that negates an offense element.\nFinally, we explore the implications of those results on whether the factual\nbasis was sufficient to support conviction.\n\n\n 8\n\f Case: 17-11301 Document: 00515003208 Page: 9 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\n E. Offense Elements and the Justification Defense in This Case\n The elements of the offense are as follows:\n (1) that the defendant knowingly possessed a firearm, as charged\n in the indictment;\n\n (2) that before the defendant possessed that firearm, the defendant\n had been convicted in a court of a crime punishable by\n imprisonment for a term in excess of one year; and\n\n (3) that the firearm possessed traveled in and affected interstate\n commerce.\n\nSee 18 U.S.C. §§ 922(g)(1) and 924(a)(2); see also Fifth Circuit Pattern Jury\nInstructions (Criminal Cases) § 2.43D (2015). Ortiz has conceded or waived his\nchallenge to the second and third elements. 1 He focuses only on the first\nelement—knowing possession.\n Ortiz hints that the brevity of his possession rendered it short of what is\nrequired under the first element. The caselaw is against him. See United States\nv. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary\nis immaterial.”); see also United States v. Matthews, 520 F.3d 806, 811 (7th Cir.\n2008) (“[M]erely holding a firearm for a brief period of time is sufficient to\nconstitute possession within the meaning of section 922.”); United States v.\nJackson, 598 F.3d 340, 351 (7th Cir. 2010) (“[T]he legislative history of 18\nU.S.C. § 922 indicates that Congress sought to prohibit even a felon’s brief\npossession of a firearm.”).\n With that aside, the record plainly establishes that Ortiz knowingly\npossessed a firearm. The Factual Resume and the PSR reflect that Ortiz, a\nconvicted felon, grabbed a Smith & Wesson that was manufactured out-of-\n\n\n\n\n 1Ortiz’s brief concedes that he is a “convicted felon” and is silent on the interstate\ncommerce requirement. “[I]ssues not briefed are waived.” United States v. Narviz-Guerra,\n148 F.3d 530, 538 (5th Cir. 1998).\n 9\n\f Case: 17-11301 Document: 00515003208 Page: 10 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nstate, ran while holding it, and then discarded it in a nearby trashcan.\nAccordingly, he knowingly possessed it.\n The factual basis establishes all three elements of the offense.\n Ortiz insists that his possession was justified because he was acting in\nself-defense or under duress. In this court, there are four showings a defendant\nmust make in order to prevail on a justification defense. 2 What matters,\nhowever, is not whether Ortiz made these showings but whether the defense\nis element-negating. We begin our analysis of that question with a case, United\nStates v. Parker, that predates the express recognition of the justification\ndefense in the felon-in-possession context. 566 F.2d 1304 (5th Cir. 1978).\n In Parker, this court examined a conviction under 26 U.S.C. § 5861, a\nstatute prohibiting knowing possession of unregistered firearms. Id. at 1305.\nAt trial, the defendant, Parker, admitted that he retrieved an unloaded\nshotgun from another room after an aggressive acquaintance cut him on the\nnose with a pocketknife. Id. When jury members asked whether they should\nconsider the reason for Parker’s shotgun possession, the trial judge responded,\n“No.” Id. On appeal, Parker challenged that instruction and argued,\n\n\n\n\n 2 This court “has established the four elements of the justification defense” as follows:\n (1) that defendant was under an unlawful and “present, imminent, and\n impending [threat] of such a nature as to induce a well-grounded\n apprehension of death or serious bodily injury”;\n (2) that defendant had not “recklessly or negligently placed himself in a\n situation in which it was probable that he would be [forced to choose the\n criminal conduct]”;\n (3) that defendant had no “reasonable legal alternative to violating the\n law; a chance both to refuse to do the criminal act and also to avoid the\n threatened harm”; and\n (4) “that a direct causal relationship may be reasonably anticipated\n between the [criminal] action taken and the avoidance of the\n [threatened] harm.”\n United States v. Harper, 802 F.2d 115, 117 (5th Cir. 1986) (quoting United States v.\n Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982)).\n 10\n\f Case: 17-11301 Document: 00515003208 Page: 11 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nessentially, that in order to prove “knowing” possession, the government had\nto prove that his possession was not justified.\n This court disagreed. Opining on the meaning of “knowing possession”\nin this context, we explained:\n Defendant contends that ‘knowing’ possession means possession\n not justified by some innocent reason. In effect, defendant’s\n interpretation would require the Government to prove, as an\n element of the offense under § 5861(d), not only that defendant\n willfully possessed the weapon, but that he had no good reason to\n justify his possession. The plain reading of the statute and the\n decided cases are to the contrary. The Government need only\n show that defendant willfully and consciously possessed an item\n which he knew to be a firearm.\n\nId. at 1306. The court ultimately concluded that it “need not decide” whether\n“a defendant may ever in defense allege some justification based on the\ncircumstances attending his illegal possession of an unregistered firearm”\nbecause Parker was, factually, ineligible for it—he had continued possessing\nthe gun after the threat subsided. Id. (emphasis added).\n Despite Parker’s fact-bound conclusion, the case reinforces the\ndistinction between an “element of the offense” and a justification defense,\nconcluding that justification would not negate any element of the crime.\n On the same day Parker was argued, the same panel heard argument in\nUnited States v. Hammons, 566 F.2d 1301 (5th Cir. 1978), vacated and\nremanded on other grounds, 439 U.S. 810 (1978). In Hammons, the defendant\nwas convicted under 18 U.S.C. § 922(h) for illegally receiving a firearm as a\nconvicted felon. Id. at 1302. The defendant, as in Parker, argued that his\nreceipt was justified under the circumstances. Id.\n Again on the unique facts of the case, the court disagreed. Id. at 1304\n(“We express no opinion on whether a different set of facts might support the\njudicial creation of such a defense to § 922(h).”). The court in Hammons took\n\n 11\n\f Case: 17-11301 Document: 00515003208 Page: 12 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nthe opportunity to emphasize, however, that knowing and justified receipt (as\nopposed to just knowing receipt) was not an element of the offense:\n Defendant does not contend that the Government must prove, as\n an element of the offense under § 922(h), that defendant received\n the gun without legal excuse . . . This argument as to a similar\n statute was rejected in [Parker], . . . [where we] held that the\n Government need only show that defendant willfully and\n consciously possessed what he knew to be a firearm.\n\nId. at 1303 & n.3.\n Parker and Hammond compel the conclusion that Ortiz satisfied the\nknowing possession element when he grabbed the gun and ran with it.\nWhether he did so under duress or in self-defense does not negate this offense\nelement.\n The case on which Ortiz relies for the contrary position, United States v.\nPanter, 688 F.2d 268 (5th Cir. 1982), is unavailing. There, defendant Lester\nPanter was convicted under the predecessor to § 922(g). Id. at 269. 3 On appeal,\nhe argued that “the jury should have been allowed to consider his self-defense\ntheory,” which the district court had failed to include in its instructions. Id.\n This court summarized the case’s remarkable facts, in the light most\nfavorable to Panter, 4 as follows:\n Panter was tending bar at the Roadrunner Lounge in Jackson\n County, Mississippi, on the evening of March 28, 1980. Bud Lins,\n a convicted murderer, was present and had been drinking heavily.\n He approached Panter after a brief argument between the two and\n stated: “Well, you ain’t done me right. I’m going to kill you.” Lins\n forthwith set out to keep this promise. He brandished a\n pocketknife and stabbed Panter in the abdomen. But Panter did\n not succumb easily; he began to fight back. He soon found himself\n\n\n 3 See United States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005) (describing 18 U.S.C.\n§ 1202(a) as “a predecessor” of § 922(g)).\n 4 “[B]ecause error is alleged in the jury instructions, we must view the facts in the\n\nlight most favorable to him.” Panter, 688 F.2d at 269 (citing United States v. Young, 464 F.2d\n160, 164 (5th Cir. 1972)).\n 12\n\f Case: 17-11301 Document: 00515003208 Page: 13 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\n on the floor beneath his assailant, however, and he reached\n underneath the bar for a club that he knew was kept there. At this\n point providence intervened. Panter’s hand fell not upon the\n intended club, but rather upon a pistol. Three shots subdued Lins,\n who died the next day.\n\n Immediately after the shooting, Panter placed the pistol on the\n bar, where it was later found by the police. The gun belonged to an\n employee named Judy, who later married Panter. He never\n touched it either before or after the fateful encounter with Mr.\n Lins.\n\nId. at 269. Crucially, “Panter admitted possessing the gun for the short time\nnecessary to defend himself from Lins.” Id. at 270. He sought only to “convince\nthe jury that he possessed the gun only then and only in self-defense.” Id.\n Panter squarely presented the question that had escaped scrutiny in\nParker and Hammons: “whether the existence of exigent circumstances or an\nemergency is a defense to a firearms possession charge.” Id. at 270–71. The\nPanter court first noted that the statutory language “prohibits convicted felons\nin absolute terms from possessing firearms,” with “no express exemption for\npossession in self-defense or for any other emergency.” Id. at 271. But, the court\nobserved, “[W]e must be mindful that ‘Congress in enacting criminal statutes\nlegislates against a background of Anglo-Saxon common law . . . .’” Id. (quoting\nUnited States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). And “[p]art of this\ncommon law is the doctrine of self-defense.” Id.\n Accordingly, Panter concluded:\n [W]e reject the government’s argument that the proscription of\n § 1202(a)(1) is absolute and admits of no self-defense exception. We\n hold today that where a convicted felon, reacting out of a\n reasonable fear for the life or safety of himself, in the actual,\n physical course of a conflict that he did not provoke, takes\n temporary possession of a firearm for the purpose or in the course\n of defending himself, he is not guilty of violating § 1202(a)(1).\n\n\n 13\n\f Case: 17-11301 Document: 00515003208 Page: 14 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nId. at 271–72. As later cases have recognized, Panter stands for the “general\navailability of common-law defenses” to a felon-in-possession charge. United\nStates v. Gant, 691 F.2d 1159, 1161 (5th Cir. 1982) (citing Panter, 688 F.2d\n268); see also United States v. Anderson, 885 F.2d 1248, 1254 (5th Cir. 1989)\n(“[I]n [Panter], we created a self-defense exception to the offense of possession\nof a pistol by a felon . . . .”). But Panter did not purport to disturb previous\nauthorities holding that justification does not negate any element of the\noffense.\n For reasons explained below, we need not resolve today whether the\nfactual basis in this case contains a viable justification defense. Assuming\narguendo that it does, Ortiz’s conviction stands.\n F. Whether the Factual Basis Was Insufficient If It Established\n Justified Possession\n\n This court has not yet decided whether a district court errs in accepting\na guilty plea when the factual basis contains an affirmative defense that does\nnot negate any offense element. 5\n Our cases have generally approached post-plea sufficiency challenges by\ncomparing the factual basis to the offense elements. We have not taken it upon\nourselves, nor required district courts, to scan for possible affirmative defenses.\nSee, e.g., United States v. Crain, 877 F.3d 637, 645 (5th Cir. 2017) (“To\ndetermine whether a defendant’s factual basis is sufficient to support his guilty\nplea, the district court must examine each element of the offense charged.”)\n(cleaned up); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (“The\n\n\n\n 5 We emphasize that this case is confined by the non-element-negating nature of the\njustification defense. Parker, 566 F.2d at 1306; Hammons, 566 F.2d at 1303. We also\nacknowledge the possibility that a justification defense might negate an offense element in a\nunique and different context. See Dixon v. United States, 548 U.S. 1, 7 & n.4 (2006) (“[T]here\nmay be crimes where the nature of the mens rea would require the Government to disprove\nthe existence of duress beyond a reasonable doubt.”).\n 14\n\f Case: 17-11301 Document: 00515003208 Page: 15 Date Filed: 06/19/2019\n\n\n\n No. 17-11301\nrecord must reveal specific factual allegations supporting each element of the\noffense.”); Marek, 238 F.3d at 315 (directing trial courts to compare “(1) the\nconduct to which the defendant admits with (2) the elements of the offense\ncharged in the indictment or information”).\n In United States v. Smith, the Second Circuit explicitly endorsed that\napproach:\n [O]nce a defendant has admitted to all the elements of an offense,\n the district court is not required to exercise discretion under [Rule\n 11] to reopen its inquiry into the factual basis for the guilty plea in\n order to explore a possible defense of justification, at least where\n justification negates none of the offense elements.\n\n160 F.3d 117, 123 (2d Cir. 1998).\n Other circuits appear to do the same. See Dismuke v. United States, 864\nF.2d 106, 107 (11th Cir. 1989) (“Nothing in Rule 11 requires the trial judge to\ninform the defendant of every possible defense he may have.”); United States\nv. Luna-Munoz, 234 F. App’x 762 (9th Cir. 2007) (“Rule 11 of the Federal Rules\nof Criminal Procedure does not require a district court to inform the defendant\nof potential justification defenses—or to rule them out—before accepting a\nguilty plea.”); United States v. Lumpkins, 845 F.2d 1444, 1451 (7th Cir. 1988)\n(“The defendant’s position in this case would go too far toward converting plea\nhearings into law school seminars on possible defenses and mini-trials on\nquestions of factual guilt.”); see also 1A Charles Alan Wright, et al., Federal\nPractice and Procedure § 179 (4th ed. 2011) (“There need not be a factual basis\nfor something that is not an element of the offense charged.”)\n We follow their lead. Even if the factual basis here revealed that Ortiz’s\npossession were justified, it nonetheless established that his conduct satisfied\nevery element of the offense. Accordingly, the district court did not err in\naccepting the plea.\n AFFIRMED.\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Michael Angelo ORTIZ, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-11301 Document: 00515003208 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-11301 June 19, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nMICHAEL ANGELO ORTIZ,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n\\n Michael Angelo Ortiz pleaded guilty to possessing a firearm and\\nammunition as a convicted felon. On appeal, he argues that the factual basis\\nsupporting his plea was insufficient. We disagree. The factual basis\\ndemonstrated that Ortiz’s conduct satisfied all elements of the offense.\\nAccordingly, we affirm the district court’s acceptance of his guilty plea.\\nI. Proceedings\\n In June 2017, a grand jury indicted Michael Angelo Ortiz on one count:\\npossessing a firearm and ammunition as a convicted felon, in violation of 18\\nU.S.C. §§ 922(g)(1) and 924(a)(2). The indictment charged:\\n\\f Case: 17-11301 Document: 00515003208 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n On or about February 19, 2017, in the Lubbock Division of the\\n Northern District of Texas, and elsewhere, Michael Angelo Ortiz,\\n defendant, a person who had previously been convicted of a crime\\n punishable by a term of imprisonment exceeding one year,\\n knowingly possessed a firearm and ammunition in and affecting\\n interstate and foreign commerce, to wit: a Smith & Wesson, .40\\n caliber pistol, serial number PAK 7828, with ammunition.\\n\\n Pursuant to a plea agreement, Ortiz pleaded guilty to the indictment and\\nwaived his right to appeal. Ortiz made no objections to the stipulated facts\\nattached to the plea (the “Factual Resume”) and never raised any affirmative\\ndefense. A presentence report (“PSR”) was prepared.\\n The district court sentenced Ortiz to 90 months of imprisonment. The\\nsentence fell within the applicable Guidelines range of 84 to 105 months and\\nwas followed by a three-year term of supervised release.\\n On appeal, the Federal Public Defender moved for leave to withdraw and\\nfiled a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Ortiz\\nfiled a response asserting, in relevant part, that he had acted in self-defense.\\nThis court ordered that the motion to withdraw be carried with the case\\nbecause Ortiz’s counsel had failed to discuss “whether a colorable defense of\\njustification was presented.” Thereafter, Ortiz’s counsel withdrew the Anders\\nmotion and filed a short brief on the merits, arguing that the district court\\nplainly erred in accepting a guilty plea that contained an insufficient factual\\nbasis. At no point in the course of these proceedings did Ortiz move to withdraw\\nhis guilty plea.\\nII. Factual Background\\n Because the precise content of the record is central to this case, we take\\ncare to present, in detail, what was recited in the Factual Resume and in the\\nPSR.\\n\\n\\n\\n 2\\n\\fCase: 17-11301 Document: 00515003208 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n The Factual Resume reads as follows:\\n 1. Michael Angelo Ortiz admits and agrees that starting on or\\n about February 19, 2017, in the Lubbock Division of the Northern\\n District of Texas, and elsewhere, Michael Angelo Ortiz, defendant,\\n a person who had previously been convicted of a crime punishable\\n by a term of imprisonment exceeding one year, knowingly\\n possessed a firearm and ammunition in or affecting interstate or\\n foreign commerce, to wit: a Smith & Wesson, .40 caliber pistol,\\n serial number PAK7828, several rounds of ammunition, in\\n violation of Title 18, United States Code, Sections 922(g)(l) and\\n 924(a)(2).\\n\\n 2. On February 19, 2017, Ortiz was involved in an altercation\\n with an individual in Lubbock, Texas, a city within the Northern\\n District of Texas. Prior to altercation, Ortiz had been notified by\\n this individual that he was waiting outside Ortiz’s apartment\\n complex in order to speak with him. During the course of their\\n conversation, Ortiz pulled out a pack of cigarettes and offered the\\n individual a cigarette from a package where Ortiz was also storing\\n some money. Seeing Ortiz’s money, the individual attempted to\\n grab the pack of cigarettes away from Ortiz and the altercation\\n ensued. During the altercation, the individual threatened Ortiz\\n with the Smith & Wesson, bearing Serial Number PAK7828. Ortiz\\n in response grabbed the Smith & Wesson. As the individual and\\n Ortiz fought over the gun, the gun discharged and shots were fired\\n into the roof of the vehicle. Once the shots had been fired, Ortiz\\n broke away and ran. After the altercation, Ortiz barricaded\\n himself inside a nearby apartment, where Ortiz, his girlfriend, and\\n his small children resided. After several hours, Ortiz voluntarily\\n exited the apartment and surrendered to law enforcement.\\n\\n 3. Law enforcement recovered the firearm from a trash bin\\n near the apartment where Ortiz and his family resided. Ortiz’s\\n jacket was located on the ground next to the trash bin where the\\n gun was found. Ortiz admits that he possessed the Smith &\\n Wesson on February 19, 2017, in Lubbock, Texas.\\n\\n 4. [An ATF Special Agent] inspected the seized firearm and\\n determined that the firearm had been manufactured outside the\\n state of Texas. Because the firearm was manufactured outside the\\n state of Texas, the firearm traveled in interstate commerce; that\\n 3\\n\\f Case: 17-11301 Document: 00515003208 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n is, the firearm had traveled at some point from one state to another\\n or between any part of the United States and any other country.\\n\\n 5. Ortiz admits that prior to the knowing possession of the\\n firearm, he had been convicted in a court of a crime punishable by\\n imprisonment for a term in excess of one year.\\n\\n 6. The defendant agrees that the defendant committed all the\\n essential elements of the offense. This factual résumé is not\\n intended to be a complete accounting of all the facts and events\\n related to the offense charged in this case. The limited purpose of\\n this statement of facts is to demonstrate that a factual basis exists\\n to support the defendant’s guilty plea to Count One of the\\n indictment.\\n\\nThe PSR tells the story from a slightly different perspective, as follows:\\n A [law enforcement] officer heard several gun shots. He then\\n witnessed Ortiz running, with his jacket in his hand, as if he was\\n concealing something inside the jacket. The officer then saw the\\n defendant go near a trash bin where a gun was later recovered.\\n ...\\n Ortiz ran into Apartment No. 2813 and barricaded himself inside.\\n ...\\n Once police arrived, including SWAT team members, the\\n defendant refused to obey police commands and leave the\\n apartment. As a result, a police standoff ensued, which lasted more\\n than 1 hour.\\n ...\\n Eventually, after officers instructed the defendant to leave the\\n apartment over the police public address system, Ortiz\\n surrendered and exited the apartment while carrying one of his\\n infant children. The defendant was arrested without incident.\\n ...\\n Ortiz was later interviewed by officers. He advised officers that he\\n was supposed to meet two people and go to a cemetery. So, he met\\n these people outside at their vehicle. While talking with them, he\\n removed a package of cigarettes, which the driver attempted to get\\n from the defendant. Shots were fired. Ortiz ran back into his\\n apartment out of fear. When interviewing officers confronted him\\n about his story contradicting other witness statements, the\\n defendant advised he was meeting a new narcotics contact, when\\n 4\\n\\f Case: 17-11301 Document: 00515003208 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n the driver pulled a firearm on the defendant. A struggle ensued\\n over the firearms, and shots were fired into the vehicle. He then\\n ran back to his apartment and discarded the gun in some bushes\\n on the way to his apartment.\\n ...\\n The firearm, a Smith & Wesson[,] . . . was recovered by police from\\n a trash bin near the defendant’s apartment . . . On the ground next\\n to this trash can, officers found Ortiz’s jacket, which had also been\\n discarded.\\n ...\\n Ortiz was arrested . . . at his mother’s [residence]. A subsequent\\n search of the residence revealed 17.87 grams of methamphetamine\\n and a loaded [Glock pistol]. The firearm was located under a\\n bedroom mattress. . . . Ortiz advised he had received the Glock\\n from a friend, and another friend was going to purchase the Glock\\n for $1,000.\\n\\nIII. Standard of Review\\n Absent a defendant’s objection in district court, this court reviews the\\nfactual basis of a guilty plea for plain error. United States v. Trejo, 610 F.3d\\n308, 313 (5th Cir. 2010).\\n On plain-error review, a defendant “must first establish an error.”\\nUnited States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019). Second, the\\ndefendant must show that the error is clear or obvious. Id. Third, the defendant\\nmust prove that the error affected the defendant’s substantial rights. Id. “To\\nsatisfy this third condition, the defendant ordinarily must show a reasonable\\nprobability that, but for the error, the outcome of the proceeding would have\\nbeen different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05\\n(2018) (internal quotation omitted). “Once those three conditions have been\\nmet, ‘the court of appeals should exercise its discretion to correct the forfeited\\nerror if the error seriously affects the fairness, integrity or public reputation of\\njudicial proceedings.’” Id. at 1905 (quoting Molina-Martinez v. United States,\\n136 S. Ct. 1338, 1343 (2016)).\\n\\n\\n 5\\n\\f Case: 17-11301 Document: 00515003208 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nIV. Discussion\\n Ortiz argues that the factual basis for his plea does not support his\\nconviction. We begin by addressing two threshold matters: first, which parts of\\nthe record we should consult for factual information and second, whether\\nOrtiz’s appeal waiver forecloses his right to challenge the sufficiency of his\\nguilty plea.\\n A. Relevant Sources of Information\\n The Advisory Committee’s Notes to Federal Rule of Criminal Procedure\\n11 make clear that a district court may use sources other than the defendant’s\\nadmissions to confirm that a factual basis exists to support those admissions.\\nSee Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendments (“The\\ncourt should satisfy itself, by inquiry of the defendant or the attorney for the\\ngovernment, or by examining the presentence report, or otherwise, that the\\nconduct which the defendant admits constitutes the offense charged in the\\nindictment . . . .”); see also McCarthy v. United States, 394 U.S. 459, 463 n.6\\n(1969) (acknowledging that “the Advisory Committee suggests three methods\\nof determining that a factual basis exists for a guilty plea”); Sassoon v. United\\nStates, 561 F.2d 1154, 1159 (5th Cir. 1977) (noting that “the Advisory\\nCommittee’s Notes accompanying Rule 11 list several means of satisfying the\\nfactual basis”).\\n In Trejo, this court confirmed that the same scope of sources may be\\nconsidered by the appellate reviewer: “In assessing factual sufficiency under\\nthe plain error standard, we may look beyond those facts admitted by the\\ndefendant during the plea colloquy and scan the entire record for facts\\nsupporting his conviction.” 610 F.3d at 313 (citing United States v. Tullos, 356\\nF. App’x 727, 727–28 (5th Cir. 2009)); see also Tullos, 356 F. App’x at 728\\n(holding that “[t]he plea colloquy, the PSR findings, and the district court’s\\n\\n\\n 6\\n\\f Case: 17-11301 Document: 00515003208 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nstatements at sentencing sufficiently support the determination that [the\\ndefendant’s] conduct met all of the elements of the [offense]”).\\n Accordingly, we consider the entire record in assessing the sufficiency of\\nthe factual basis.\\n B. Appeal Waiver\\n\\n The government presses Ortiz’s appeal waiver. But our court has\\nrepeatedly held that “even if there is an unconditional plea of guilty or a waiver\\nof appeal provision in a plea agreement, this Court has the power to review if\\nthe factual basis for the plea fails to establish an element of the offense which\\nthe defendant pled guilty to appeal waivers in that context.” United States v.\\nBaymon, 312 F.3d 725, 727 (5th Cir. 2002); see also United States v. Alvarado-\\nCasas, 715 F.3d 945, 951 (5th Cir. 2013) (noting that the defendant could\\n“challenge the factual basis underlying his guilty plea notwithstanding his\\nunconditional appeal waiver”). Accordingly, we proceed to the merits.\\n C. Ortiz’s Argument\\n Ortiz argues that the factual basis does not support his conviction. But\\nhe fails to specify whether he means that the factual basis (1) does not\\nestablish the elements of the offense, or (2) establishes the elements of the\\noffense but also establishes an affirmative justification defense. That\\ndistinction decides his case. While only the former supports reversal, Ortiz\\narguably shows only the latter.\\n We first explore the relationship between offense elements and\\naffirmative defenses generally.\\n D. Elements and Affirmative Defenses\\n Hornbook criminal law distinguishes between offense elements and\\naffirmative defenses. See Paul H. Robinson, Criminal Law Defenses: A\\nSystematic Analysis, 82 Colum. L. Rev. 199, 291 n.164 (1982) (“The distinction\\n\\n 7\\n\\f Case: 17-11301 Document: 00515003208 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nbetween offenses and defenses is perhaps the most basic distinction in criminal\\nlaw that lawyers . . . recognize.”). The distinction has constitutional\\nsignificance; while “the Due Process Clause requires the prosecution to prove\\nbeyond a reasonable doubt all of the elements included in the definition of the\\noffense of which the defendant is charged[,] . . . [p]roof of the nonexistence of\\nall affirmative defenses has never been constitutionally required.” Patterson v.\\nNew York, 432 U.S. 197, 210 (1977); see also Smith v. United States, 568 U.S.\\n106, 110 (2013) (“Where [an affirmative defense] ‘excuse[s] conduct that would\\notherwise be punishable,’ but ‘does not controvert any of the elements of the\\noffense itself,’ the Government has no constitutional duty to overcome the\\ndefense beyond a reasonable doubt.”) (quoting Dixon v. United States, 548 U.S.\\n1, 6 (2006)).\\n As Patterson and Smith reflect, the offense-defense distinction is\\ncomplicated when a defense “controvert[s]” an offense element. Smith, 568 U.S.\\nat 110 (citing Dixon, 548 U.S. at 6); see also id. (“The State is foreclosed from\\nshifting the burden of proof to the defendant only ‘when an affirmative\\ndefense . . . negate[s] an element of the crime.’”) (quoting Martin v. Ohio, 480\\nU.S. 228, 237 (1987) (Powell, J., dissenting)). Justification defenses such as\\nduress and necessity are not, typically, element-negating. See Dixon, 548 U.S.\\nat 6 (“The duress defense, like the defense of necessity . . . may excuse conduct\\nthat would otherwise be punishable, but the existence of duress normally does\\nnot controvert any of the elements of the offense itself.”).\\n With that framework in mind, we first examine whether the factual basis\\nin this case establishes the elements of the offense. Then we assess whether it\\nmight provide for an affirmative defense that negates an offense element.\\nFinally, we explore the implications of those results on whether the factual\\nbasis was sufficient to support conviction.\\n\\n\\n 8\\n\\f Case: 17-11301 Document: 00515003208 Page: 9 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n E. Offense Elements and the Justification Defense in This Case\\n The elements of the offense are as follows:\\n (1) that the defendant knowingly possessed a firearm, as charged\\n in the indictment;\\n\\n (2) that before the defendant possessed that firearm, the defendant\\n had been convicted in a court of a crime punishable by\\n imprisonment for a term in excess of one year; and\\n\\n (3) that the firearm possessed traveled in and affected interstate\\n commerce.\\n\\nSee 18 U.S.C. §§ 922(g)(1) and 924(a)(2); see also Fifth Circuit Pattern Jury\\nInstructions (Criminal Cases) § 2.43D (2015). Ortiz has conceded or waived his\\nchallenge to the second and third elements. 1 He focuses only on the first\\nelement—knowing possession.\\n Ortiz hints that the brevity of his possession rendered it short of what is\\nrequired under the first element. The caselaw is against him. See United States\\nv. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary\\nis immaterial.”); see also United States v. Matthews, 520 F.3d 806, 811 (7th Cir.\\n2008) (“[M]erely holding a firearm for a brief period of time is sufficient to\\nconstitute possession within the meaning of section 922.”); United States v.\\nJackson, 598 F.3d 340, 351 (7th Cir. 2010) (“[T]he legislative history of 18\\nU.S.C. § 922 indicates that Congress sought to prohibit even a felon’s brief\\npossession of a firearm.”).\\n With that aside, the record plainly establishes that Ortiz knowingly\\npossessed a firearm. The Factual Resume and the PSR reflect that Ortiz, a\\nconvicted felon, grabbed a Smith & Wesson that was manufactured out-of-\\n\\n\\n\\n\\n 1Ortiz’s brief concedes that he is a “convicted felon” and is silent on the interstate\\ncommerce requirement. “[I]ssues not briefed are waived.” United States v. Narviz-Guerra,\\n148 F.3d 530, 538 (5th Cir. 1998).\\n 9\\n\\f Case: 17-11301 Document: 00515003208 Page: 10 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nstate, ran while holding it, and then discarded it in a nearby trashcan.\\nAccordingly, he knowingly possessed it.\\n The factual basis establishes all three elements of the offense.\\n Ortiz insists that his possession was justified because he was acting in\\nself-defense or under duress. In this court, there are four showings a defendant\\nmust make in order to prevail on a justification defense. 2 What matters,\\nhowever, is not whether Ortiz made these showings but whether the defense\\nis element-negating. We begin our analysis of that question with a case, United\\nStates v. Parker, that predates the express recognition of the justification\\ndefense in the felon-in-possession context. 566 F.2d 1304 (5th Cir. 1978).\\n In Parker, this court examined a conviction under 26 U.S.C. § 5861, a\\nstatute prohibiting knowing possession of unregistered firearms. Id. at 1305.\\nAt trial, the defendant, Parker, admitted that he retrieved an unloaded\\nshotgun from another room after an aggressive acquaintance cut him on the\\nnose with a pocketknife. Id. When jury members asked whether they should\\nconsider the reason for Parker’s shotgun possession, the trial judge responded,\\n“No.” Id. On appeal, Parker challenged that instruction and argued,\\n\\n\\n\\n\\n 2 This court “has established the four elements of the justification defense” as follows:\\n (1) that defendant was under an unlawful and “present, imminent, and\\n impending [threat] of such a nature as to induce a well-grounded\\n apprehension of death or serious bodily injury”;\\n (2) that defendant had not “recklessly or negligently placed himself in a\\n situation in which it was probable that he would be [forced to choose the\\n criminal conduct]”;\\n (3) that defendant had no “reasonable legal alternative to violating the\\n law; a chance both to refuse to do the criminal act and also to avoid the\\n threatened harm”; and\\n (4) “that a direct causal relationship may be reasonably anticipated\\n between the [criminal] action taken and the avoidance of the\\n [threatened] harm.”\\n United States v. Harper, 802 F.2d 115, 117 (5th Cir. 1986) (quoting United States v.\\n Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982)).\\n 10\\n\\f Case: 17-11301 Document: 00515003208 Page: 11 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nessentially, that in order to prove “knowing” possession, the government had\\nto prove that his possession was not justified.\\n This court disagreed. Opining on the meaning of “knowing possession”\\nin this context, we explained:\\n Defendant contends that ‘knowing’ possession means possession\\n not justified by some innocent reason. In effect, defendant’s\\n interpretation would require the Government to prove, as an\\n element of the offense under § 5861(d), not only that defendant\\n willfully possessed the weapon, but that he had no good reason to\\n justify his possession. The plain reading of the statute and the\\n decided cases are to the contrary. The Government need only\\n show that defendant willfully and consciously possessed an item\\n which he knew to be a firearm.\\n\\nId. at 1306. The court ultimately concluded that it “need not decide” whether\\n“a defendant may ever in defense allege some justification based on the\\ncircumstances attending his illegal possession of an unregistered firearm”\\nbecause Parker was, factually, ineligible for it—he had continued possessing\\nthe gun after the threat subsided. Id. (emphasis added).\\n Despite Parker’s fact-bound conclusion, the case reinforces the\\ndistinction between an “element of the offense” and a justification defense,\\nconcluding that justification would not negate any element of the crime.\\n On the same day Parker was argued, the same panel heard argument in\\nUnited States v. Hammons, 566 F.2d 1301 (5th Cir. 1978), vacated and\\nremanded on other grounds, 439 U.S. 810 (1978). In Hammons, the defendant\\nwas convicted under 18 U.S.C. § 922(h) for illegally receiving a firearm as a\\nconvicted felon. Id. at 1302. The defendant, as in Parker, argued that his\\nreceipt was justified under the circumstances. Id.\\n Again on the unique facts of the case, the court disagreed. Id. at 1304\\n(“We express no opinion on whether a different set of facts might support the\\njudicial creation of such a defense to § 922(h).”). The court in Hammons took\\n\\n 11\\n\\f Case: 17-11301 Document: 00515003208 Page: 12 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nthe opportunity to emphasize, however, that knowing and justified receipt (as\\nopposed to just knowing receipt) was not an element of the offense:\\n Defendant does not contend that the Government must prove, as\\n an element of the offense under § 922(h), that defendant received\\n the gun without legal excuse . . . This argument as to a similar\\n statute was rejected in [Parker], . . . [where we] held that the\\n Government need only show that defendant willfully and\\n consciously possessed what he knew to be a firearm.\\n\\nId. at 1303 & n.3.\\n Parker and Hammond compel the conclusion that Ortiz satisfied the\\nknowing possession element when he grabbed the gun and ran with it.\\nWhether he did so under duress or in self-defense does not negate this offense\\nelement.\\n The case on which Ortiz relies for the contrary position, United States v.\\nPanter, 688 F.2d 268 (5th Cir. 1982), is unavailing. There, defendant Lester\\nPanter was convicted under the predecessor to § 922(g). Id. at 269. 3 On appeal,\\nhe argued that “the jury should have been allowed to consider his self-defense\\ntheory,” which the district court had failed to include in its instructions. Id.\\n This court summarized the case’s remarkable facts, in the light most\\nfavorable to Panter, 4 as follows:\\n Panter was tending bar at the Roadrunner Lounge in Jackson\\n County, Mississippi, on the evening of March 28, 1980. Bud Lins,\\n a convicted murderer, was present and had been drinking heavily.\\n He approached Panter after a brief argument between the two and\\n stated: “Well, you ain’t done me right. I’m going to kill you.” Lins\\n forthwith set out to keep this promise. He brandished a\\n pocketknife and stabbed Panter in the abdomen. But Panter did\\n not succumb easily; he began to fight back. He soon found himself\\n\\n\\n 3 See United States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005) (describing 18 U.S.C.\\n§ 1202(a) as “a predecessor” of § 922(g)).\\n 4 “[B]ecause error is alleged in the jury instructions, we must view the facts in the\\n\\nlight most favorable to him.” Panter, 688 F.2d at 269 (citing United States v. Young, 464 F.2d\\n160, 164 (5th Cir. 1972)).\\n 12\\n\\f Case: 17-11301 Document: 00515003208 Page: 13 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\n on the floor beneath his assailant, however, and he reached\\n underneath the bar for a club that he knew was kept there. At this\\n point providence intervened. Panter’s hand fell not upon the\\n intended club, but rather upon a pistol. Three shots subdued Lins,\\n who died the next day.\\n\\n Immediately after the shooting, Panter placed the pistol on the\\n bar, where it was later found by the police. The gun belonged to an\\n employee named Judy, who later married Panter. He never\\n touched it either before or after the fateful encounter with Mr.\\n Lins.\\n\\nId. at 269. Crucially, “Panter admitted possessing the gun for the short time\\nnecessary to defend himself from Lins.” Id. at 270. He sought only to “convince\\nthe jury that he possessed the gun only then and only in self-defense.” Id.\\n Panter squarely presented the question that had escaped scrutiny in\\nParker and Hammons: “whether the existence of exigent circumstances or an\\nemergency is a defense to a firearms possession charge.” Id. at 270–71. The\\nPanter court first noted that the statutory language “prohibits convicted felons\\nin absolute terms from possessing firearms,” with “no express exemption for\\npossession in self-defense or for any other emergency.” Id. at 271. But, the court\\nobserved, “[W]e must be mindful that ‘Congress in enacting criminal statutes\\nlegislates against a background of Anglo-Saxon common law . . . .’” Id. (quoting\\nUnited States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). And “[p]art of this\\ncommon law is the doctrine of self-defense.” Id.\\n Accordingly, Panter concluded:\\n [W]e reject the government’s argument that the proscription of\\n § 1202(a)(1) is absolute and admits of no self-defense exception. We\\n hold today that where a convicted felon, reacting out of a\\n reasonable fear for the life or safety of himself, in the actual,\\n physical course of a conflict that he did not provoke, takes\\n temporary possession of a firearm for the purpose or in the course\\n of defending himself, he is not guilty of violating § 1202(a)(1).\\n\\n\\n 13\\n\\f Case: 17-11301 Document: 00515003208 Page: 14 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nId. at 271–72. As later cases have recognized, Panter stands for the “general\\navailability of common-law defenses” to a felon-in-possession charge. United\\nStates v. Gant, 691 F.2d 1159, 1161 (5th Cir. 1982) (citing Panter, 688 F.2d\\n268); see also United States v. Anderson, 885 F.2d 1248, 1254 (5th Cir. 1989)\\n(“[I]n [Panter], we created a self-defense exception to the offense of possession\\nof a pistol by a felon . . . .”). But Panter did not purport to disturb previous\\nauthorities holding that justification does not negate any element of the\\noffense.\\n For reasons explained below, we need not resolve today whether the\\nfactual basis in this case contains a viable justification defense. Assuming\\narguendo that it does, Ortiz’s conviction stands.\\n F. Whether the Factual Basis Was Insufficient If It Established\\n Justified Possession\\n\\n This court has not yet decided whether a district court errs in accepting\\na guilty plea when the factual basis contains an affirmative defense that does\\nnot negate any offense element. 5\\n Our cases have generally approached post-plea sufficiency challenges by\\ncomparing the factual basis to the offense elements. We have not taken it upon\\nourselves, nor required district courts, to scan for possible affirmative defenses.\\nSee, e.g., United States v. Crain, 877 F.3d 637, 645 (5th Cir. 2017) (“To\\ndetermine whether a defendant’s factual basis is sufficient to support his guilty\\nplea, the district court must examine each element of the offense charged.”)\\n(cleaned up); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (“The\\n\\n\\n\\n 5 We emphasize that this case is confined by the non-element-negating nature of the\\njustification defense. Parker, 566 F.2d at 1306; Hammons, 566 F.2d at 1303. We also\\nacknowledge the possibility that a justification defense might negate an offense element in a\\nunique and different context. See Dixon v. United States, 548 U.S. 1, 7 & n.4 (2006) (“[T]here\\nmay be crimes where the nature of the mens rea would require the Government to disprove\\nthe existence of duress beyond a reasonable doubt.”).\\n 14\\n\\f Case: 17-11301 Document: 00515003208 Page: 15 Date Filed: 06/19/2019\\n\\n\\n\\n No. 17-11301\\nrecord must reveal specific factual allegations supporting each element of the\\noffense.”); Marek, 238 F.3d at 315 (directing trial courts to compare “(1) the\\nconduct to which the defendant admits with (2) the elements of the offense\\ncharged in the indictment or information”).\\n In United States v. Smith, the Second Circuit explicitly endorsed that\\napproach:\\n [O]nce a defendant has admitted to all the elements of an offense,\\n the district court is not required to exercise discretion under [Rule\\n 11] to reopen its inquiry into the factual basis for the guilty plea in\\n order to explore a possible defense of justification, at least where\\n justification negates none of the offense elements.\\n\\n160 F.3d 117, 123 (2d Cir. 1998).\\n Other circuits appear to do the same. See Dismuke v. United States, 864\\nF.2d 106, 107 (11th Cir. 1989) (“Nothing in Rule 11 requires the trial judge to\\ninform the defendant of every possible defense he may have.”); United States\\nv. Luna-Munoz, 234 F. App’x 762 (9th Cir. 2007) (“Rule 11 of the Federal Rules\\nof Criminal Procedure does not require a district court to inform the defendant\\nof potential justification defenses—or to rule them out—before accepting a\\nguilty plea.”); United States v. Lumpkins, 845 F.2d 1444, 1451 (7th Cir. 1988)\\n(“The defendant’s position in this case would go too far toward converting plea\\nhearings into law school seminars on possible defenses and mini-trials on\\nquestions of factual guilt.”); see also 1A Charles Alan Wright, et al., Federal\\nPractice and Procedure § 179 (4th ed. 2011) (“There need not be a factual basis\\nfor something that is not an element of the offense charged.”)\\n We follow their lead. Even if the factual basis here revealed that Ortiz’s\\npossession were justified, it nonetheless established that his conduct satisfied\\nevery element of the offense. Accordingly, the district court did not err in\\naccepting the plea.\\n AFFIRMED.\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2463,"cells":{"id":{"kind":"number","value":4631336,"string":"4,631,336"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Kelvin Lewis BREE, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Kelvin Bree"},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"18-40360"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginson, Willett, Brown\", \"parties\": \"\", \"opinions\": [{\"author\": \"DON R. WILLETT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40360 Document: 00515002494 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-40360 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 19, 2019\\nUNITED STATES OF AMERICA,\\n Lyle W. Cayce\\n Plaintiff–Appellee, Clerk\\n\\n\\nv.\\n\\nKELVIN LEWIS BREE,\\n\\n Defendant–Appellant.\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\n\\nBefore HIGGINSON and WILLETT, Circuit Judges, and BROWN, District\\nJudge. *\\n\\nDON R. WILLETT, Circuit Judge:\\n Kelvin Lewis Bree contends that the district court erred in mandating,\\nas a special condition of supervised release, that he participate in a mental-\\nhealth treatment program “because of [his] substance problems.” We agree\\nthat the mental-health special condition is unsupported by the record and\\nconstitutes reversible plain error. We MODIFY the sentence by striking the\\nmental-health condition and AFFIRM the sentence as modified.\\n\\n\\n\\n\\n * District Judge of the Northern District of Mississippi, sitting by designation.\\n\\f Case: 18-40360 Document: 00515002494 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\n I\\n In October 2017, a Border Patrol agent stopped then-57-year-old Bree at\\nthe Sarita checkpoint on the U.S.–Mexico border. The agent’s canine\\ncompanion sniffed out several bundles of marijuana and cocaine hidden\\nbeneath a seat in Bree’s truck. Bree was promptly charged with two counts of\\ndrug possession with intent to distribute. As part of a plea agreement, Bree\\npleaded guilty to the first count, and the second count was waived by\\ngovernment motion.\\n Bree’s presentence report (PSR) covered his rather extensive criminal\\nhistory. Under “Mental and Emotional Health,” the PSR noted:\\n In addition to mental and emotional health problems pertaining to\\n drug and/or alcohol abuse noted in the next paragraph, the\\n defendant reported a suicide attempt. The defendant stated that\\n at approximately age 18 or 19, he was in an unhealthy relationship\\n with the mother of his oldest child and recalled taking more than\\n the prescribed amount of an unknown medication. When asked if\\n he was trying to cause himself harm at the time, the defendant\\n stated that he probably was. Bree went on to say that he was\\n “young and being stupid.”\\nThe PSR also reported that Bree began consuming alcohol and experimenting\\nwith drugs at age 14. He stopped using marijuana around 1981 and stopped\\ndrinking alcohol in 1992. He also used cocaine daily from 1988 until 1998 but\\nquit after participating in a substance abuse program while incarcerated. In a\\nsealed appendix, the PSR recommended “mental health treatment” and\\n“substance abuse treatment.”\\n The district court sentenced Bree to 70 months imprisonment and 4\\nyears supervised release. As part of his supervised release, the court imposed\\nspecial conditions requiring “mental health treatment because of [Bree’s]\\nsubstance problems, and substance abuse treatment as to in-abstinence.” Both\\nspecial conditions required Bree to participate in and pay for a treatment\\nprogram, under the supervision of a probation officer. The mental-health\\n 2\\n\\f Case: 18-40360 Document: 00515002494 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\ncondition further required Bree to purchase and take any medications\\nprescribed by a physician while being treated. Bree timely appealed,\\nchallenging only the mental-health condition.\\n\\n II\\n Because Bree failed to object to his sentence in the trial court, we review\\nfor plain error. 1 To prevail, Bree must demonstrate that (1) the district court\\nerred, (2) the error was plain, (3) the plain error affected his substantial rights,\\nand (4) allowing the plain error to stand would “seriously affect the fairness,\\nintegrity, or public reputation of judicial proceedings.” 2 Clearing the plain-\\nerror hurdle is “difficult, as it should be.” 3 But Bree does so here.\\n A\\n Sentencing courts possess “broad discretion to impose special conditions\\nof supervised release.” 4 This discretion, though, is limited by two laws.\\n First, under 18 U.S.C. § 3583(d), special conditions must be “reasonably\\nrelated” to one of the following four factors, found in 18 U.S.C. § 3553(a):\\n (1) the nature and characteristics of the offense and the history and\\n characteristics of the defendant; (2) the need for the sentence\\n imposed to afford adequate deterrence to criminal conduct; (3) the\\n need for the sentence imposed to protect the public from further\\n crimes of the defendant; and (4) the need for the sentence imposed\\n to provide the defendant with needed educational or vocational\\n training, medical care, or other correctional treatment in the most\\n effective manner.\\n\\n Second, a special condition must “involve[] no greater deprivation of\\nliberty than is reasonably necessary” to advance the last three § 3553(a) factors\\nand must be “consistent with any pertinent policy statements issued by the\\n\\n\\n\\n 1 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (per curiam).\\n 2 Puckett v. United States, 556 U.S. 129, 135 (2009) (cleaned up).\\n 3 Id.\\n 4 Alvarez, 880 F.3d at 239.\\n\\n 3\\n\\f Case: 18-40360 Document: 00515002494 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\nSentencing Commission.” 5 The Commission has recognized that imposing a\\nspecial condition requiring mental-health treatment is appropriate when “the\\ncourt has reason to believe that the defendant is in need of psychological or\\npsychiatric treatment.” 6\\n We begin with the district court’s stated reasons. Section 3553(a)\\nrequires a sentencing court to “state in open court the reasons for its imposition\\nof the particular sentence.” 7 Four years ago in United States v. Caravayo, we\\nclarified that these reasons must be in the form of a “factual finding or\\notherwise evident from the record.” 8 And they must show that the special\\ncondition is “tailored to the individual defendant.” 9 If not, then we usually\\nrecognize plain error and vacate the contested condition. 10 And if the court\\ndoesn’t provide reasons. or if its reasons are unclear, we may independently\\nreview the record for evidence that could justify a special condition. 11\\n The district court pointed to Bree’s “substance problems” to justify the\\nmental-health treatment condition.” We start by evaluating this reason under\\n§ 3553(c).\\n By itself, a history of substance abuse doesn’t justify imposing a mental-\\nhealth condition under § 3553(a). As we explained recently in United States v.\\nGordon, a mental-health special condition should not be imposed absent\\n“record evidence indicating that [the defendant] has a questionable mental\\nhealth history or a particular diagnosis requiring mental health treatment.” 12\\nBasing such a condition on “substance problems” would not be “tailored,” but\\n\\n\\n\\n 5 18 U.S.C. § 3583(d)(2), (d)(3).\\n 6 U.S.S.G. § 5D1.3(d)(5).\\n 7 18 U.S.C. § 3553(c).\\n 8 809 F.3d 269, 276 (5th Cir. 2015).\\n 9 Id.\\n 10 Id.; see also Alvarez, 880 F.3d at 240.\\n 11 See United States v. Salazar, 743 F.3d 445, 451-53 (5th Cir. 2014).\\n 12 838 F.3d 597, 604 (5th Cir. 2016); see also Alvarez, 880 F.3d at 240–41.\\n\\n 4\\n\\f Case: 18-40360 Document: 00515002494 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\nill-fitting. 13 The district court’s stated reason doesn’t show why the mental-\\nhealth condition was “reasonably necessary” to deter crime, protect the public,\\nor provide needed treatment. 14 The trial court already imposed a special\\ncondition of substance-abuse counseling for Bree’s “in-abstinence.” This is a\\nbetter way to address Bree’s “substance problems.”\\n Because the district court’s stated reasoning was scant, we\\nindependently review the record for sufficient evidence to support a mental-\\nhealth special condition. After all, the mere possibility that the court could\\nhave imposed a less restrictive alternative based on its stated reasoning “is not\\nnecessarily fatal” to a special condition. 15 Rather, the condition should appear\\nreasonably necessary based on record evidence. 16\\n But this record cannot redeem the district court’s decision. The PSR\\nnever stated that Bree had previously been diagnosed with a mental disorder. 17\\nAnd a suicide attempt 40 years before Bree’s offense doesn’t satisfy Gordon’s\\nhistory-of-mental-problems standard. 18\\n The Government suggests that when Bree lost his job he may have fallen\\ninto depression; if so, he’d need mental-health treatment. This doesn’t sway us.\\nOur precedent requires specific record facts demonstrating mental instability\\nbefore a mental-health special condition may be imposed. 19 Unadorned\\nspeculation isn’t enough.\\n\\n\\n\\n\\n 13 Caravayo, 809 F.3d at 276.\\n 14 18 U.S.C. § 3583(d)(2).\\n 15 Caravayo, 809 F.3d at 276.\\n 16 Id.\\n 17 See Gordon, 838 F.3d at 604.\\n 18 Id. Even the unpublished outer limits of our jurisprudence require some discernible\\n\\ntrend of mental imbalance to warrant imposing a mental-health condition. United States v.\\nRocha, 732 F. App’x 291, 296 (5th Cir. 2018) (holding record testimony of defendant’s\\nmentally suspect activity sufficient for a mental-health condition).\\n 19 Gordon, 838 F.3d at 604.\\n\\n 5\\n\\f Case: 18-40360 Document: 00515002494 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\n The Government also tries to establish a parallel between the probation\\nofficer’s PSR notes about Bree’s criminal history and the plaintiff’s alleged\\nmental lapses in our unpublished 2018 case, United States v. Rocha. 20 Yet the\\nPSR does not base its mental-health-treatment recommendation on Bree’s past\\ncrimes. In any event, the probation officer’s recommendation is not a specific\\nrecord fact, but a conclusion drawn from the facts. And the officer’s conclusion\\ndoesn’t jibe with Gordon’s clear requirement of an evinced pattern of “a\\nquestionable mental health history or a particular diagnosis requiring mental\\nhealth treatment.” 21\\n Absent additional evidence that Bree’s mental state is weakened, the\\nmental-health condition is overly burdensome and runs afoul of § 3583(d)(2)’s\\nprohibition against unduly restrictive special conditions. The district court\\nplainly erred.\\n B\\n We next consider whether the district court’s plain error affected Bree’s\\nsubstantial rights. The challenged condition required Bree to “pay the cost” for\\nany mental-health treatment. Bree’s participation in a court-ordered mental-\\nhealth program also “may require a significant commitment of time” and\\n“creates a possibly unwarranted perception that [he] requires mental health\\ntreatment.” 22 The district court’s error encroached unreasonably on Bree’s time\\nand financial resources, and possibly harmed his reputation.\\n The Government argues that Bree probably wouldn’t end up paying for\\nmental-health treatment anyway since he’s a man of meager means. We do not\\nshare the Government’s nonchalance. Whatever money Bree has, it is his. Nor\\n\\n\\n\\n\\n 20 732 F. App’x at 292.\\n 21 838 F.3d at 604.\\n 22 Alvarez, 880 F.3d at 241.\\n\\n 6\\n\\f Case: 18-40360 Document: 00515002494 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\ndoes the Government adequately rebut the violation of Bree’s other substantial\\nrights.\\n C\\n Even if a sentencing court’s plain error affects a defendant’s substantial\\nrights, we will only exercise our discretion to correct the error if it seriously\\nharms “the fairness, integrity, or public reputation of judicial proceedings.” 23\\nInitially, this seems like a close call. After all, we didn’t vacate the mental-\\nhealth conditions in United States v. Mendoza-Valasquez, explaining that the\\ndefendant has “an extensive criminal history,” and the district court can\\nmodify the condition later. 24\\n But Mendoza-Velszquez is distinguishable from Bree’s situation. First,\\nMendoza-Velasquez was decided under the now-overruled “shocks the\\nconscience” standard that we previously (and incorrectly) used as shorthand\\nfor the fourth plain-error prong. 25 Second, the Supreme Court recently ruled in\\nRosales-Mirales that criminal history simply isn’t relevant to that prong. 26\\nThird, we held in Alvarez that “the ability . . . to modify a special condition is\\nonly one factor considered as we determine whether to exercise our\\ndiscretion.” 27 In other cases where the district court has imposed a plainly\\nerroneous mental-health condition, we exercised our discretion to strike the\\ncontested condition simply because it touched on “significant autonomy and\\nprivacy concerns.” 28 Those concerns are front and center in Bree’s case.\\n\\n\\n\\n\\n 23 Puckett, 556 U.S. at 135.\\n 24 847 F.3d 209, 213 (5th Cir. 2017).\\n 25 See id.; see also Rosales-Mirales v. United States, 138 S. Ct. 1897, 1906–07 (2018).\\n 26 Rosales-Mirales, 138 S. Ct. at 1910 n.5.\\n 27 Alvarez, 880 F.3d at 242.\\n 28 See id.; see also Gordon, 838 F.3d at 605.\\n\\n 7\\n\\f Case: 18-40360 Document: 00515002494 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\n III\\n The district court committed plain error. But because Bree’s challenge is\\nlimited to a single special condition of his sentence, we decline to remand for\\nresentencing. In similar situations, we have instead modified the district\\ncourt’s sentence and affirmed the sentence as modified. 29 We do the same here.\\n The judgment of sentence is MODIFIED by striking the mental-health\\nspecial condition. In all other respects, the judgment is AFFIRMED.\\n\\n\\n\\n\\n 29 E.g., United States v. De Jesus-Batres, 410 F.3d 154, 166 (5th Cir. 2005); United\\nStates v. Fields, 247 F.3d 240, 240 (5th Cir. 2001) (per curiam).\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408589/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINSON"},"judge2":{"kind":"string","value":"WILLETT"},"judge3":{"kind":"string","value":"BROWN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631336/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Kelvin Lewis BREE, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40360 Document: 00515002494 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-40360 United States Court of Appeals\n Fifth Circuit\n\n FILED\n June 19, 2019\nUNITED STATES OF AMERICA,\n Lyle W. Cayce\n Plaintiff–Appellee, Clerk\n\n\nv.\n\nKELVIN LEWIS BREE,\n\n Defendant–Appellant.\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\n\nBefore HIGGINSON and WILLETT, Circuit Judges, and BROWN, District\nJudge. *\n\nDON R. WILLETT, Circuit Judge:\n Kelvin Lewis Bree contends that the district court erred in mandating,\nas a special condition of supervised release, that he participate in a mental-\nhealth treatment program “because of [his] substance problems.” We agree\nthat the mental-health special condition is unsupported by the record and\nconstitutes reversible plain error. We MODIFY the sentence by striking the\nmental-health condition and AFFIRM the sentence as modified.\n\n\n\n\n * District Judge of the Northern District of Mississippi, sitting by designation.\n\f Case: 18-40360 Document: 00515002494 Page: 2 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\n I\n In October 2017, a Border Patrol agent stopped then-57-year-old Bree at\nthe Sarita checkpoint on the U.S.–Mexico border. The agent’s canine\ncompanion sniffed out several bundles of marijuana and cocaine hidden\nbeneath a seat in Bree’s truck. Bree was promptly charged with two counts of\ndrug possession with intent to distribute. As part of a plea agreement, Bree\npleaded guilty to the first count, and the second count was waived by\ngovernment motion.\n Bree’s presentence report (PSR) covered his rather extensive criminal\nhistory. Under “Mental and Emotional Health,” the PSR noted:\n In addition to mental and emotional health problems pertaining to\n drug and/or alcohol abuse noted in the next paragraph, the\n defendant reported a suicide attempt. The defendant stated that\n at approximately age 18 or 19, he was in an unhealthy relationship\n with the mother of his oldest child and recalled taking more than\n the prescribed amount of an unknown medication. When asked if\n he was trying to cause himself harm at the time, the defendant\n stated that he probably was. Bree went on to say that he was\n “young and being stupid.”\nThe PSR also reported that Bree began consuming alcohol and experimenting\nwith drugs at age 14. He stopped using marijuana around 1981 and stopped\ndrinking alcohol in 1992. He also used cocaine daily from 1988 until 1998 but\nquit after participating in a substance abuse program while incarcerated. In a\nsealed appendix, the PSR recommended “mental health treatment” and\n“substance abuse treatment.”\n The district court sentenced Bree to 70 months imprisonment and 4\nyears supervised release. As part of his supervised release, the court imposed\nspecial conditions requiring “mental health treatment because of [Bree’s]\nsubstance problems, and substance abuse treatment as to in-abstinence.” Both\nspecial conditions required Bree to participate in and pay for a treatment\nprogram, under the supervision of a probation officer. The mental-health\n 2\n\f Case: 18-40360 Document: 00515002494 Page: 3 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\ncondition further required Bree to purchase and take any medications\nprescribed by a physician while being treated. Bree timely appealed,\nchallenging only the mental-health condition.\n\n II\n Because Bree failed to object to his sentence in the trial court, we review\nfor plain error. 1 To prevail, Bree must demonstrate that (1) the district court\nerred, (2) the error was plain, (3) the plain error affected his substantial rights,\nand (4) allowing the plain error to stand would “seriously affect the fairness,\nintegrity, or public reputation of judicial proceedings.” 2 Clearing the plain-\nerror hurdle is “difficult, as it should be.” 3 But Bree does so here.\n A\n Sentencing courts possess “broad discretion to impose special conditions\nof supervised release.” 4 This discretion, though, is limited by two laws.\n First, under 18 U.S.C. § 3583(d), special conditions must be “reasonably\nrelated” to one of the following four factors, found in 18 U.S.C. § 3553(a):\n (1) the nature and characteristics of the offense and the history and\n characteristics of the defendant; (2) the need for the sentence\n imposed to afford adequate deterrence to criminal conduct; (3) the\n need for the sentence imposed to protect the public from further\n crimes of the defendant; and (4) the need for the sentence imposed\n to provide the defendant with needed educational or vocational\n training, medical care, or other correctional treatment in the most\n effective manner.\n\n Second, a special condition must “involve[] no greater deprivation of\nliberty than is reasonably necessary” to advance the last three § 3553(a) factors\nand must be “consistent with any pertinent policy statements issued by the\n\n\n\n 1 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (per curiam).\n 2 Puckett v. United States, 556 U.S. 129, 135 (2009) (cleaned up).\n 3 Id.\n 4 Alvarez, 880 F.3d at 239.\n\n 3\n\f Case: 18-40360 Document: 00515002494 Page: 4 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\nSentencing Commission.” 5 The Commission has recognized that imposing a\nspecial condition requiring mental-health treatment is appropriate when “the\ncourt has reason to believe that the defendant is in need of psychological or\npsychiatric treatment.” 6\n We begin with the district court’s stated reasons. Section 3553(a)\nrequires a sentencing court to “state in open court the reasons for its imposition\nof the particular sentence.” 7 Four years ago in United States v. Caravayo, we\nclarified that these reasons must be in the form of a “factual finding or\notherwise evident from the record.” 8 And they must show that the special\ncondition is “tailored to the individual defendant.” 9 If not, then we usually\nrecognize plain error and vacate the contested condition. 10 And if the court\ndoesn’t provide reasons. or if its reasons are unclear, we may independently\nreview the record for evidence that could justify a special condition. 11\n The district court pointed to Bree’s “substance problems” to justify the\nmental-health treatment condition.” We start by evaluating this reason under\n§ 3553(c).\n By itself, a history of substance abuse doesn’t justify imposing a mental-\nhealth condition under § 3553(a). As we explained recently in United States v.\nGordon, a mental-health special condition should not be imposed absent\n“record evidence indicating that [the defendant] has a questionable mental\nhealth history or a particular diagnosis requiring mental health treatment.” 12\nBasing such a condition on “substance problems” would not be “tailored,” but\n\n\n\n 5 18 U.S.C. § 3583(d)(2), (d)(3).\n 6 U.S.S.G. § 5D1.3(d)(5).\n 7 18 U.S.C. § 3553(c).\n 8 809 F.3d 269, 276 (5th Cir. 2015).\n 9 Id.\n 10 Id.; see also Alvarez, 880 F.3d at 240.\n 11 See United States v. Salazar, 743 F.3d 445, 451-53 (5th Cir. 2014).\n 12 838 F.3d 597, 604 (5th Cir. 2016); see also Alvarez, 880 F.3d at 240–41.\n\n 4\n\f Case: 18-40360 Document: 00515002494 Page: 5 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\nill-fitting. 13 The district court’s stated reason doesn’t show why the mental-\nhealth condition was “reasonably necessary” to deter crime, protect the public,\nor provide needed treatment. 14 The trial court already imposed a special\ncondition of substance-abuse counseling for Bree’s “in-abstinence.” This is a\nbetter way to address Bree’s “substance problems.”\n Because the district court’s stated reasoning was scant, we\nindependently review the record for sufficient evidence to support a mental-\nhealth special condition. After all, the mere possibility that the court could\nhave imposed a less restrictive alternative based on its stated reasoning “is not\nnecessarily fatal” to a special condition. 15 Rather, the condition should appear\nreasonably necessary based on record evidence. 16\n But this record cannot redeem the district court’s decision. The PSR\nnever stated that Bree had previously been diagnosed with a mental disorder. 17\nAnd a suicide attempt 40 years before Bree’s offense doesn’t satisfy Gordon’s\nhistory-of-mental-problems standard. 18\n The Government suggests that when Bree lost his job he may have fallen\ninto depression; if so, he’d need mental-health treatment. This doesn’t sway us.\nOur precedent requires specific record facts demonstrating mental instability\nbefore a mental-health special condition may be imposed. 19 Unadorned\nspeculation isn’t enough.\n\n\n\n\n 13 Caravayo, 809 F.3d at 276.\n 14 18 U.S.C. § 3583(d)(2).\n 15 Caravayo, 809 F.3d at 276.\n 16 Id.\n 17 See Gordon, 838 F.3d at 604.\n 18 Id. Even the unpublished outer limits of our jurisprudence require some discernible\n\ntrend of mental imbalance to warrant imposing a mental-health condition. United States v.\nRocha, 732 F. App’x 291, 296 (5th Cir. 2018) (holding record testimony of defendant’s\nmentally suspect activity sufficient for a mental-health condition).\n 19 Gordon, 838 F.3d at 604.\n\n 5\n\f Case: 18-40360 Document: 00515002494 Page: 6 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\n The Government also tries to establish a parallel between the probation\nofficer’s PSR notes about Bree’s criminal history and the plaintiff’s alleged\nmental lapses in our unpublished 2018 case, United States v. Rocha. 20 Yet the\nPSR does not base its mental-health-treatment recommendation on Bree’s past\ncrimes. In any event, the probation officer’s recommendation is not a specific\nrecord fact, but a conclusion drawn from the facts. And the officer’s conclusion\ndoesn’t jibe with Gordon’s clear requirement of an evinced pattern of “a\nquestionable mental health history or a particular diagnosis requiring mental\nhealth treatment.” 21\n Absent additional evidence that Bree’s mental state is weakened, the\nmental-health condition is overly burdensome and runs afoul of § 3583(d)(2)’s\nprohibition against unduly restrictive special conditions. The district court\nplainly erred.\n B\n We next consider whether the district court’s plain error affected Bree’s\nsubstantial rights. The challenged condition required Bree to “pay the cost” for\nany mental-health treatment. Bree’s participation in a court-ordered mental-\nhealth program also “may require a significant commitment of time” and\n“creates a possibly unwarranted perception that [he] requires mental health\ntreatment.” 22 The district court’s error encroached unreasonably on Bree’s time\nand financial resources, and possibly harmed his reputation.\n The Government argues that Bree probably wouldn’t end up paying for\nmental-health treatment anyway since he’s a man of meager means. We do not\nshare the Government’s nonchalance. Whatever money Bree has, it is his. Nor\n\n\n\n\n 20 732 F. App’x at 292.\n 21 838 F.3d at 604.\n 22 Alvarez, 880 F.3d at 241.\n\n 6\n\f Case: 18-40360 Document: 00515002494 Page: 7 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\ndoes the Government adequately rebut the violation of Bree’s other substantial\nrights.\n C\n Even if a sentencing court’s plain error affects a defendant’s substantial\nrights, we will only exercise our discretion to correct the error if it seriously\nharms “the fairness, integrity, or public reputation of judicial proceedings.” 23\nInitially, this seems like a close call. After all, we didn’t vacate the mental-\nhealth conditions in United States v. Mendoza-Valasquez, explaining that the\ndefendant has “an extensive criminal history,” and the district court can\nmodify the condition later. 24\n But Mendoza-Velszquez is distinguishable from Bree’s situation. First,\nMendoza-Velasquez was decided under the now-overruled “shocks the\nconscience” standard that we previously (and incorrectly) used as shorthand\nfor the fourth plain-error prong. 25 Second, the Supreme Court recently ruled in\nRosales-Mirales that criminal history simply isn’t relevant to that prong. 26\nThird, we held in Alvarez that “the ability . . . to modify a special condition is\nonly one factor considered as we determine whether to exercise our\ndiscretion.” 27 In other cases where the district court has imposed a plainly\nerroneous mental-health condition, we exercised our discretion to strike the\ncontested condition simply because it touched on “significant autonomy and\nprivacy concerns.” 28 Those concerns are front and center in Bree’s case.\n\n\n\n\n 23 Puckett, 556 U.S. at 135.\n 24 847 F.3d 209, 213 (5th Cir. 2017).\n 25 See id.; see also Rosales-Mirales v. United States, 138 S. Ct. 1897, 1906–07 (2018).\n 26 Rosales-Mirales, 138 S. Ct. at 1910 n.5.\n 27 Alvarez, 880 F.3d at 242.\n 28 See id.; see also Gordon, 838 F.3d at 605.\n\n 7\n\f Case: 18-40360 Document: 00515002494 Page: 8 Date Filed: 06/19/2019\n\n\n\n No. 18-40360\n III\n The district court committed plain error. But because Bree’s challenge is\nlimited to a single special condition of his sentence, we decline to remand for\nresentencing. In similar situations, we have instead modified the district\ncourt’s sentence and affirmed the sentence as modified. 29 We do the same here.\n The judgment of sentence is MODIFIED by striking the mental-health\nspecial condition. In all other respects, the judgment is AFFIRMED.\n\n\n\n\n 29 E.g., United States v. De Jesus-Batres, 410 F.3d 154, 166 (5th Cir. 2005); United\nStates v. Fields, 247 F.3d 240, 240 (5th Cir. 2001) (per curiam).\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Kelvin Lewis BREE, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40360 Document: 00515002494 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-40360 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 19, 2019\\nUNITED STATES OF AMERICA,\\n Lyle W. Cayce\\n Plaintiff–Appellee, Clerk\\n\\n\\nv.\\n\\nKELVIN LEWIS BREE,\\n\\n Defendant–Appellant.\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\n\\nBefore HIGGINSON and WILLETT, Circuit Judges, and BROWN, District\\nJudge. *\\n\\nDON R. WILLETT, Circuit Judge:\\n Kelvin Lewis Bree contends that the district court erred in mandating,\\nas a special condition of supervised release, that he participate in a mental-\\nhealth treatment program “because of [his] substance problems.” We agree\\nthat the mental-health special condition is unsupported by the record and\\nconstitutes reversible plain error. We MODIFY the sentence by striking the\\nmental-health condition and AFFIRM the sentence as modified.\\n\\n\\n\\n\\n * District Judge of the Northern District of Mississippi, sitting by designation.\\n\\f Case: 18-40360 Document: 00515002494 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\n I\\n In October 2017, a Border Patrol agent stopped then-57-year-old Bree at\\nthe Sarita checkpoint on the U.S.–Mexico border. The agent’s canine\\ncompanion sniffed out several bundles of marijuana and cocaine hidden\\nbeneath a seat in Bree’s truck. Bree was promptly charged with two counts of\\ndrug possession with intent to distribute. As part of a plea agreement, Bree\\npleaded guilty to the first count, and the second count was waived by\\ngovernment motion.\\n Bree’s presentence report (PSR) covered his rather extensive criminal\\nhistory. Under “Mental and Emotional Health,” the PSR noted:\\n In addition to mental and emotional health problems pertaining to\\n drug and/or alcohol abuse noted in the next paragraph, the\\n defendant reported a suicide attempt. The defendant stated that\\n at approximately age 18 or 19, he was in an unhealthy relationship\\n with the mother of his oldest child and recalled taking more than\\n the prescribed amount of an unknown medication. When asked if\\n he was trying to cause himself harm at the time, the defendant\\n stated that he probably was. Bree went on to say that he was\\n “young and being stupid.”\\nThe PSR also reported that Bree began consuming alcohol and experimenting\\nwith drugs at age 14. He stopped using marijuana around 1981 and stopped\\ndrinking alcohol in 1992. He also used cocaine daily from 1988 until 1998 but\\nquit after participating in a substance abuse program while incarcerated. In a\\nsealed appendix, the PSR recommended “mental health treatment” and\\n“substance abuse treatment.”\\n The district court sentenced Bree to 70 months imprisonment and 4\\nyears supervised release. As part of his supervised release, the court imposed\\nspecial conditions requiring “mental health treatment because of [Bree’s]\\nsubstance problems, and substance abuse treatment as to in-abstinence.” Both\\nspecial conditions required Bree to participate in and pay for a treatment\\nprogram, under the supervision of a probation officer. The mental-health\\n 2\\n\\f Case: 18-40360 Document: 00515002494 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\ncondition further required Bree to purchase and take any medications\\nprescribed by a physician while being treated. Bree timely appealed,\\nchallenging only the mental-health condition.\\n\\n II\\n Because Bree failed to object to his sentence in the trial court, we review\\nfor plain error. 1 To prevail, Bree must demonstrate that (1) the district court\\nerred, (2) the error was plain, (3) the plain error affected his substantial rights,\\nand (4) allowing the plain error to stand would “seriously affect the fairness,\\nintegrity, or public reputation of judicial proceedings.” 2 Clearing the plain-\\nerror hurdle is “difficult, as it should be.” 3 But Bree does so here.\\n A\\n Sentencing courts possess “broad discretion to impose special conditions\\nof supervised release.” 4 This discretion, though, is limited by two laws.\\n First, under 18 U.S.C. § 3583(d), special conditions must be “reasonably\\nrelated” to one of the following four factors, found in 18 U.S.C. § 3553(a):\\n (1) the nature and characteristics of the offense and the history and\\n characteristics of the defendant; (2) the need for the sentence\\n imposed to afford adequate deterrence to criminal conduct; (3) the\\n need for the sentence imposed to protect the public from further\\n crimes of the defendant; and (4) the need for the sentence imposed\\n to provide the defendant with needed educational or vocational\\n training, medical care, or other correctional treatment in the most\\n effective manner.\\n\\n Second, a special condition must “involve[] no greater deprivation of\\nliberty than is reasonably necessary” to advance the last three § 3553(a) factors\\nand must be “consistent with any pertinent policy statements issued by the\\n\\n\\n\\n 1 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (per curiam).\\n 2 Puckett v. United States, 556 U.S. 129, 135 (2009) (cleaned up).\\n 3 Id.\\n 4 Alvarez, 880 F.3d at 239.\\n\\n 3\\n\\f Case: 18-40360 Document: 00515002494 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\nSentencing Commission.” 5 The Commission has recognized that imposing a\\nspecial condition requiring mental-health treatment is appropriate when “the\\ncourt has reason to believe that the defendant is in need of psychological or\\npsychiatric treatment.” 6\\n We begin with the district court’s stated reasons. Section 3553(a)\\nrequires a sentencing court to “state in open court the reasons for its imposition\\nof the particular sentence.” 7 Four years ago in United States v. Caravayo, we\\nclarified that these reasons must be in the form of a “factual finding or\\notherwise evident from the record.” 8 And they must show that the special\\ncondition is “tailored to the individual defendant.” 9 If not, then we usually\\nrecognize plain error and vacate the contested condition. 10 And if the court\\ndoesn’t provide reasons. or if its reasons are unclear, we may independently\\nreview the record for evidence that could justify a special condition. 11\\n The district court pointed to Bree’s “substance problems” to justify the\\nmental-health treatment condition.” We start by evaluating this reason under\\n§ 3553(c).\\n By itself, a history of substance abuse doesn’t justify imposing a mental-\\nhealth condition under § 3553(a). As we explained recently in United States v.\\nGordon, a mental-health special condition should not be imposed absent\\n“record evidence indicating that [the defendant] has a questionable mental\\nhealth history or a particular diagnosis requiring mental health treatment.” 12\\nBasing such a condition on “substance problems” would not be “tailored,” but\\n\\n\\n\\n 5 18 U.S.C. § 3583(d)(2), (d)(3).\\n 6 U.S.S.G. § 5D1.3(d)(5).\\n 7 18 U.S.C. § 3553(c).\\n 8 809 F.3d 269, 276 (5th Cir. 2015).\\n 9 Id.\\n 10 Id.; see also Alvarez, 880 F.3d at 240.\\n 11 See United States v. Salazar, 743 F.3d 445, 451-53 (5th Cir. 2014).\\n 12 838 F.3d 597, 604 (5th Cir. 2016); see also Alvarez, 880 F.3d at 240–41.\\n\\n 4\\n\\f Case: 18-40360 Document: 00515002494 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\nill-fitting. 13 The district court’s stated reason doesn’t show why the mental-\\nhealth condition was “reasonably necessary” to deter crime, protect the public,\\nor provide needed treatment. 14 The trial court already imposed a special\\ncondition of substance-abuse counseling for Bree’s “in-abstinence.” This is a\\nbetter way to address Bree’s “substance problems.”\\n Because the district court’s stated reasoning was scant, we\\nindependently review the record for sufficient evidence to support a mental-\\nhealth special condition. After all, the mere possibility that the court could\\nhave imposed a less restrictive alternative based on its stated reasoning “is not\\nnecessarily fatal” to a special condition. 15 Rather, the condition should appear\\nreasonably necessary based on record evidence. 16\\n But this record cannot redeem the district court’s decision. The PSR\\nnever stated that Bree had previously been diagnosed with a mental disorder. 17\\nAnd a suicide attempt 40 years before Bree’s offense doesn’t satisfy Gordon’s\\nhistory-of-mental-problems standard. 18\\n The Government suggests that when Bree lost his job he may have fallen\\ninto depression; if so, he’d need mental-health treatment. This doesn’t sway us.\\nOur precedent requires specific record facts demonstrating mental instability\\nbefore a mental-health special condition may be imposed. 19 Unadorned\\nspeculation isn’t enough.\\n\\n\\n\\n\\n 13 Caravayo, 809 F.3d at 276.\\n 14 18 U.S.C. § 3583(d)(2).\\n 15 Caravayo, 809 F.3d at 276.\\n 16 Id.\\n 17 See Gordon, 838 F.3d at 604.\\n 18 Id. Even the unpublished outer limits of our jurisprudence require some discernible\\n\\ntrend of mental imbalance to warrant imposing a mental-health condition. United States v.\\nRocha, 732 F. App’x 291, 296 (5th Cir. 2018) (holding record testimony of defendant’s\\nmentally suspect activity sufficient for a mental-health condition).\\n 19 Gordon, 838 F.3d at 604.\\n\\n 5\\n\\f Case: 18-40360 Document: 00515002494 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\n The Government also tries to establish a parallel between the probation\\nofficer’s PSR notes about Bree’s criminal history and the plaintiff’s alleged\\nmental lapses in our unpublished 2018 case, United States v. Rocha. 20 Yet the\\nPSR does not base its mental-health-treatment recommendation on Bree’s past\\ncrimes. In any event, the probation officer’s recommendation is not a specific\\nrecord fact, but a conclusion drawn from the facts. And the officer’s conclusion\\ndoesn’t jibe with Gordon’s clear requirement of an evinced pattern of “a\\nquestionable mental health history or a particular diagnosis requiring mental\\nhealth treatment.” 21\\n Absent additional evidence that Bree’s mental state is weakened, the\\nmental-health condition is overly burdensome and runs afoul of § 3583(d)(2)’s\\nprohibition against unduly restrictive special conditions. The district court\\nplainly erred.\\n B\\n We next consider whether the district court’s plain error affected Bree’s\\nsubstantial rights. The challenged condition required Bree to “pay the cost” for\\nany mental-health treatment. Bree’s participation in a court-ordered mental-\\nhealth program also “may require a significant commitment of time” and\\n“creates a possibly unwarranted perception that [he] requires mental health\\ntreatment.” 22 The district court’s error encroached unreasonably on Bree’s time\\nand financial resources, and possibly harmed his reputation.\\n The Government argues that Bree probably wouldn’t end up paying for\\nmental-health treatment anyway since he’s a man of meager means. We do not\\nshare the Government’s nonchalance. Whatever money Bree has, it is his. Nor\\n\\n\\n\\n\\n 20 732 F. App’x at 292.\\n 21 838 F.3d at 604.\\n 22 Alvarez, 880 F.3d at 241.\\n\\n 6\\n\\f Case: 18-40360 Document: 00515002494 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\ndoes the Government adequately rebut the violation of Bree’s other substantial\\nrights.\\n C\\n Even if a sentencing court’s plain error affects a defendant’s substantial\\nrights, we will only exercise our discretion to correct the error if it seriously\\nharms “the fairness, integrity, or public reputation of judicial proceedings.” 23\\nInitially, this seems like a close call. After all, we didn’t vacate the mental-\\nhealth conditions in United States v. Mendoza-Valasquez, explaining that the\\ndefendant has “an extensive criminal history,” and the district court can\\nmodify the condition later. 24\\n But Mendoza-Velszquez is distinguishable from Bree’s situation. First,\\nMendoza-Velasquez was decided under the now-overruled “shocks the\\nconscience” standard that we previously (and incorrectly) used as shorthand\\nfor the fourth plain-error prong. 25 Second, the Supreme Court recently ruled in\\nRosales-Mirales that criminal history simply isn’t relevant to that prong. 26\\nThird, we held in Alvarez that “the ability . . . to modify a special condition is\\nonly one factor considered as we determine whether to exercise our\\ndiscretion.” 27 In other cases where the district court has imposed a plainly\\nerroneous mental-health condition, we exercised our discretion to strike the\\ncontested condition simply because it touched on “significant autonomy and\\nprivacy concerns.” 28 Those concerns are front and center in Bree’s case.\\n\\n\\n\\n\\n 23 Puckett, 556 U.S. at 135.\\n 24 847 F.3d 209, 213 (5th Cir. 2017).\\n 25 See id.; see also Rosales-Mirales v. United States, 138 S. Ct. 1897, 1906–07 (2018).\\n 26 Rosales-Mirales, 138 S. Ct. at 1910 n.5.\\n 27 Alvarez, 880 F.3d at 242.\\n 28 See id.; see also Gordon, 838 F.3d at 605.\\n\\n 7\\n\\f Case: 18-40360 Document: 00515002494 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40360\\n III\\n The district court committed plain error. But because Bree’s challenge is\\nlimited to a single special condition of his sentence, we decline to remand for\\nresentencing. In similar situations, we have instead modified the district\\ncourt’s sentence and affirmed the sentence as modified. 29 We do the same here.\\n The judgment of sentence is MODIFIED by striking the mental-health\\nspecial condition. In all other respects, the judgment is AFFIRMED.\\n\\n\\n\\n\\n 29 E.g., United States v. De Jesus-Batres, 410 F.3d 154, 166 (5th Cir. 2005); United\\nStates v. Fields, 247 F.3d 240, 240 (5th Cir. 2001) (per curiam).\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2464,"cells":{"id":{"kind":"number","value":4631349,"string":"4,631,349"},"name":{"kind":"string","value":"In the MATTER OF: LINN ENERGY, L.L.C.; Berry Petroleum Company, L.L.C.; LinnCo, L.L.C.; Linn Acquisition Company, L.L.C. ; Linn Energy Finance Corporation ; Linn Energy Holdings, L.L.C. ; Linn Exploration & Production Michigan, L.L.C. ; Linn Exploration Midcontinent, L.L.C. ; Linn Midstream, L.L.C. ; Linn Midwest Energy, L.L.C. ; Linn Operating, Incorporated; Mid-Continent I, L.L.C. ; Mid-Continent II, L.L.C. ; Mid-Continent Holdings I, L.L.C. ; Mid-Continent Holdings II, L.L.C., Debtors Oklahoma State Treasurer, Unclaimed Property Division, Appellee v. Linn Operating, Incorporated, Appellant"},"name_abbreviation":{"kind":"string","value":"Okla. State Treasurer v. Linn Operating, Inc. (In Re Linn Energy, L.L.C.)"},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"18-40575"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Davis, Jones, Dennis\", \"parties\": \"\", \"opinions\": [{\"author\": \"EDITH H. JONES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40575 Document: 00515002398 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 19, 2019\\n No. 18-40575\\n Lyle W. Cayce\\n Clerk\\nIn the Matter of: LINN ENERGY, L.L.C.; BERRY PETROLEUM\\nCOMPANY, L.L.C.; LINNCO, L.L.C.; LINN ACQUISITION COMPANY,\\nL.L.C.; LINN ENERGY FINANCE CORPORATION; LINN ENERGY\\nHOLDINGS, L.L.C.; LINN EXPLORATION & PRODUCTION MICHIGAN,\\nL.L.C.; LINN EXPLORATION MIDCONTINENT, L.L.C.; LINN\\nMIDSTREAM, L.L.C.; LINN MIDWEST ENERGY, L.L.C.; LINN\\nOPERATING, INCORPORATED; MID-CONTINENT I, L.L.C.; MID-\\nCONTINENT II, L.L.C.; MID-CONTINENT HOLDINGS I, L.L.C.; MID-\\nCONTINENT HOLDINGS II, L.L.C.,\\n\\n Debtors\\n\\nOKLAHOMA STATE TREASURER, Unclaimed Property Division,\\n\\n Appellee\\n\\nv.\\n\\nLINN OPERATING, INCORPORATED,\\n\\n Appellant\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n The district court held that the bankruptcy court erred in dismissing a\\npost-confirmation attempt by the Oklahoma State Treasurer (“Treasurer”) to\\nobtain the right to unclaimed royalty payments owed by the oil and gas debtor.\\n\\f Case: 18-40575 Document: 00515002398 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nBecause the Treasurer sat on its rights during the entire Chapter 11 process,\\nres judicata bars its claim. We REVERSE the district court judgment and\\nreinstate the bankruptcy court’s DISMISSAL of the Treasurer’s case.\\n I. BACKGROUND\\n Linn Energy, LLC (“Linn”) is an oil and gas company that operates in\\nTexas and Oklahoma. In May 2016, Linn and fourteen affiliated entities filed\\nvoluntary petitions for relief under Chapter 11 of the Bankruptcy Code. The\\nbankruptcy court set a deadline requiring all “Proofs of Claims” from “[a]ll\\ngovernmental units holding claims . . . that arose . . . prior to the Petition Date”\\nto be filed by November 7, 2016. The Treasurer timely filed three proofs of\\nclaim on August 29 for “unknown/contingent” amounts, which it described as\\n“unsecured.” The Treasurer stated that it had filed the claim pursuant to\\nOklahoma’s “unclaimed property law,” and that it was “acting as a conservator\\nor custodian on behalf of the classes of persons . . . who have failed to claim\\nproperty owing to them for the statutory period of abandonment.”\\n In November 2016, Linn filed a report with the Treasurer indicating that\\nit possessed $956,212.72 in unclaimed property but did not transfer those\\nassets to the Treasurer. The Treasurer contends that Linn was required by\\nstate law to deliver the unclaimed-property funds when it filed the report, but\\nit did not then file an adversary complaint demanding that Linn turn over the\\nfunds. Significantly, on December 5, the Texas Comptroller filed an adversary\\ncomplaint against Linn for unclaimed property owed to Texas residents after\\nLinn disclosed $1.5 million in unclaimed-property holdings to that agency. See\\nComplaint for Turnover and Payment of Unclaimed Property and Related\\nRelief, In re Linn Energy, LLC, No. 16-06023 (Bankr. S.D. Tex. Dec. 5, 2016),\\nECF No. 1.\\n On December 19, Linn sent all claimants in the bankruptcy case—\\nincluding the Treasurer and the Texas Comptroller—a ballot for voting on its\\n 2\\n\\f Case: 18-40575 Document: 00515002398 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nproposed Plan of Reorganization (“the Plan”). The Treasurer did not vote, but\\nthe Texas Comptroller filed an objection to confirmation because the Plan\\npurported to distribute the unclaimed property assets of Texas residents, as\\nunsecured assets, among parties other than the Comptroller. 1 On January 27,\\n2017, the bankruptcy court entered an order confirming the Plan, but the order\\nexpressly authorized the Texas Comptroller to pursue its claims for unclaimed\\nproperty.\\n Several features of the Plan are critical here. First, a section titled\\n“Preservation of Royalty and Working Interests” provided that “any right to\\npayment from a Royalty and Working interest, if any, shall be treated as a\\nLinn General Unsecured Claim under this Plan and shall be subject to any\\ndischarge and/or release provided hereunder.” Second, the vesting clause\\nstated that, except as otherwise provided in the Plan, “all property in each\\nEstate, all Causes of Action, and any property acquired by any of the Linn\\nDebtors pursuant to the Plan shall vest in [Linn], free and clear of all Liens,\\nClaims, charges, Interests, or other encumbrances” once the Plan became final.\\nFinally, the Plan’s discharge provision stated that, pursuant to Section 1141(d)\\nof the Bankruptcy Code, and except as otherwise stated by the Plan, “the\\ndistributions, rights, and treatment that are provided in the Plan shall be in\\ncomplete satisfaction, discharge, and release, effective as of the Effective\\nDate[ ] of Claims[,] . . . Interests, and Causes of Action of any nature\\nwhatsoever.” That section of the Plan further enjoins any parties to the\\nproceedings from commencing or continuing a claim related to the bankruptcy\\nestate after the Plan received final approval.\\n\\n\\n\\n 1 See Texas Comptroller of Public Accounts Objection to Confirmation of the Linn Plan\\n[Dkt. No. 1333] and the Berry Plan [Dkt. No. 1390], In re Linn Energy, LLC, No. 16-60040\\n(Bankr. S.D. Tex. Jan. 17, 2017), ECF No. 1548.\\n\\n 3\\n\\f Case: 18-40575 Document: 00515002398 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\n All parties to the bankruptcy case had fourteen days in which to appeal\\nthe order, see Fed. R. Bankr. P. 8002, and on the final day of the appeal period,\\na group of claimants moved for reconsideration and relief from the order. 2\\nAfter the claimants agreed to a stipulation with Linn, the motion for\\nreconsideration was withdrawn with prejudice on March 6. 3 Thereafter, no\\nclaimant appealed the order or moved for reconsideration, and the\\nconfirmation became final on March 20.\\n About two months later, Linn objected to the Treasurer’s proofs of claim\\nfor “unknown contingent” unclaimed property, asserting that it was not liable\\nfor such claims and that the Bankruptcy Code preempted state unclaimed\\nproperty laws. The Treasurer responded to the objection and then filed an\\nadversary complaint against Linn. The Treasurer asserted that Linn\\npossessed, but did not own, $965,216.72 in unclaimed property consisting of\\ninvestors’ mineral royalties from Linn’s Oklahoma oil and gas operations and\\nthat Linn was required by Oklahoma law to turn over the funds to the\\nTreasurer.\\n Linn moved to dismiss the Treasurer’s adversary complaint pursuant to\\nBankruptcy Rule 7012(b)(6), analogous to Fed. R. Civ. P. 12(b)(6), asserting\\nthat the claim violated the Plan’s injunction, vesting, and discharge provisions\\nand was barred by the principles of res judicata and preemption. The\\nTreasurer re-emphasized that the unclaimed property never belonged to Linn.\\n\\n\\n\\n 2See James H. Niven’s, Charles E. Hinkle’s, and Bianchi Family Ltd. Partnership’s\\nMotion for Reconsideration of Purported Disallowance of Claims; Relief from the\\nConfirmation Order; or, in the Alterative, to Alter or Amend Cure Amount in the\\nConfirmation Order, In re Linn Energy, LLC, No. 16-60040 (Bankr. S.D. Tex. Feb. 10, 2017),\\nECF No. 1691.\\n\\n 3 See Stipulation and Agreed Order Between Debtors James H. Niven, Charles E.\\nHinkle, and Bianchi Family Ltd. Partnership, In re Linn, LLC, No. 16-60040 (Bankr. S.D.\\nTex. Mar. 6, 2017), ECF No. 1779.\\n 4\\n\\f Case: 18-40575 Document: 00515002398 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nConsequently, it never became part of the bankruptcy estate and could not be\\ngoverned by the Plan. After a hearing, the bankruptcy court sided with Linn.\\nGranting the motion to dismiss, the court concluded that the Treasurer had\\n“received more than adequate due process,” and that its complaint amounted\\nto a prohibited “collateral attack” on the confirmed Plan.\\n The Treasurer appealed to the district court, which reversed the\\nbankruptcy court’s dismissal on the grounds that the unclaimed property never\\nbecame part of the bankruptcy estate, and therefore the bankruptcy court did\\nnot have jurisdiction to adjudicate its status. Linn moved for rehearing, but\\nthe district court denied the motion. Linn timely appealed.\\n II. STANDARD OF REVIEW\\n This court reviews “the decision of a district court sitting as an appellate\\ncourt in a bankruptcy case by applying the same standards of review to the\\nbankruptcy court’s findings of fact and conclusions of law as applied by the\\ndistrict court.” In re Lopez, 897 F.3d 663, 668 (5th Cir. 2018) (internal\\nquotation marks and citations omitted). As such, this court acts “as a second\\nreview court” and reviews the bankruptcy court’s conclusions of law de novo\\nand its findings of fact for clear error. Id. (internal quotation marks and\\ncitations omitted).\\n III. DISCUSSION\\n Linn advances four arguments challenging the district court’s decision.\\nFirst, Linn argues that, contrary to the district court’s determination, the\\nunclaimed property is part of the bankruptcy estate and subject to the Plan. 4\\n\\n\\n\\n 4 The Treasurer spends a significant portion of its brief asserting that Linn waived\\nthis argument because, allegedly, Linn did not raise the issue until its motion for rehearing\\nin the district court. That argument is belied both by Linn’s briefs and by the Treasurer’s\\nown briefs in the bankruptcy court. In response to Linn’s motion to dismiss the Treasurer’s\\nadversary complaint, for example, the Treasurer argued that judicial estoppel should prevent\\nLinn from claiming that the unclaimed property was part of the bankruptcy estate because\\n 5\\n\\f Case: 18-40575 Document: 00515002398 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nSecond, Linn argues that the bankruptcy court correctly determined that the\\nPlan and ensuing Confirmation Order constitute a final judgment that the\\nTreasurer may not collaterally attack, and that the principles of res judicata\\nbar the Treasurer’s untimely adverse complaint. Third, Linn argues that the\\nTreasurer had no “right to payment” under Oklahoma’s unclaimed property\\nlaws as of the date of the bankruptcy petition and, therefore, the Bankruptcy\\nCode barred the Treasurer’s claims. Finally, Linn argues that, to the extent\\nthat the Bankruptcy Code and Oklahoma’s unclaimed property law are in\\ntension with one another, the Bankruptcy Code preempts Oklahoma state law.\\n This court need not address the merits of Linn’s first, third, and fourth\\narguments because Linn’s second argument is correct—the bankruptcy court’s\\napproval of the Plan and the ensuing confirmation order constitute a final\\njudgment that may not be collaterally attacked.\\n In Travelers Indemnity Co. v. Bailey, the Supreme Court held that final\\nbankruptcy orders (i.e., orders that are affirmed upon direct review, or, as in\\nthis case, not appealed or contested) become “res judicata to the parties and\\nthose in privity with them, not only as to every matter which was offered and\\nreceived to sustain or defeat the claim or demand, but as to any other\\nadmissible matter which might have been offered for that purpose.”\\n557 U.S. 137, 152, 129 S. Ct. 2195, 2205 (2009) (internal quotation marks and\\ncitation omitted). The Court explicitly held that this principle applies “whether\\nor not [the orders were] proper exercises of bankruptcy court jurisdiction and\\npower” at the time they became final. Id.\\n\\n\\n\\n\\n“only after” the bankruptcy court entered the confirmation order “did [Linn] change positions\\nand claim that the Admitted Unclaimed Property is property of the estate.” Whatever the\\nhistory of Linn’s positions in the bankruptcy proceedings before the final order was entered,\\nit is clear that Linn has argued from the outset in this litigation that the unclaimed property\\nfunds were property of the bankruptcy estate. Accordingly, the argument is not waived.\\n 6\\n\\f Case: 18-40575 Document: 00515002398 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\n Thus, when parties to a bankruptcy case have been given “a fair chance\\nto challenge [a] [b]ankruptcy [c]ourt’s subject-matter jurisdiction” or a\\nprovision of a plan approved by the bankruptcy court during the case and fail\\nto do so, they cannot challenge the court’s order later through a collateral\\nattack. Id. at 153, 129 S. Ct. at 2206. This court has repeatedly recognized the\\ncollateral bar established by Travelers. See, e.g., In re Davis Offshore, L.P.,\\n644 F.3d 259, 265 (5th Cir. 2011) (“Travelers held that a bankruptcy court’s\\nplan confirmation order cannot, after it becomes final, be collaterally attacked\\nby parties to the case or those in privity with them on grounds that it exceeded\\nthe bankruptcy court’s jurisdiction.”).\\n Here, the Plan submitted by Linn to claimants clearly stated that\\nunclaimed mineral royalties would be treated as unsecured debt, that upon the\\nPlan’s approval all remaining property would vest in Linn, and that no parties\\ncould bring further claims against Linn after the Plan became final. Despite\\nample opportunity provided by the Bankruptcy Code and the court’s\\nprocedures, the Treasurer neither voted on the Plan nor contested its\\ntreatment of the unclaimed property in question. That the Treasurer had a\\nfair chance to challenge the Plan’s disposition of unclaimed property in\\nOklahoma is highlighted by the fact that a similarly-situated party, the Texas\\nComptroller, did object to the Plan’s treatment of unclaimed property in Texas\\nand successfully excluded that property from the Plan.\\n The Treasurer cites Pearlman v. Reliance Insurance Co., 371 U.S. 132,\\n135–36, 83 S. Ct. 232, 234 (1962), which held that the former Bankruptcy Act\\ndoes not permit bankruptcy trustees to distribute the property of other\\npersons. While that proposition is sound as a general principle, the Treasurer’s\\nreliance on Pearlman in this case is misplaced. Pearlman evaluated the\\nlegality of a bankruptcy plan on direct review; here, the Treasurer had an\\nopportunity to challenge the Plan in the normal course of proceedings (as the\\n 7\\n\\f Case: 18-40575 Document: 00515002398 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nTexas Comptroller did) but did not avail itself of that opportunity. Travelers,\\ndecided decades after Pearlman, explicitly precludes collateral attacks on final\\nbankruptcy orders by parties to the proceedings “whether or not [they] were\\nproper exercises of bankruptcy court jurisdiction and power” in the first\\ninstance. 5 557 U.S. at 152, 129 S. Ct. at 2205. To hold otherwise would upend\\nthe need for finality in the judicial system, because “this sort of collateral\\nattack cannot be squared with res judicata and the practical necessity served\\nby that rule. It is just as important that there should be a place to end as that\\nthere should be a place to begin litigation.” Id. at 154, 129 S. Ct. at 2206\\n(internal quotation marks and citation omitted).\\n In short, the Treasurer asks this court to “tunnel back” into a completed\\nproceeding “for the purposes of reassessing prior jurisdiction de novo.” Id.\\n(internal quotation marks and citation omitted). We decline to do so. Because\\nthe Treasurer failed to participate in the bankruptcy case and object to or\\nappeal the Plan’s disposition of the Oklahoma unclaimed property in the\\nnormal course, its challenge is too late now. The bankruptcy court’s dismissal\\nof the Treasurer’s adversary complaint based on res judicata was correct\\n IV. CONCLUSION\\n For the foregoing reasons, this court REVERSES the district court’s\\nreversal of the judgment entered by the bankruptcy court. The bankruptcy\\ncourt’s decision to DISMISS the Treasurer’s complaint is reinstated.\\n\\n\\n\\n\\n 5 This court has no occasion to rule on the propriety of the bankruptcy plan to the\\nextent it purported to distribute unclaimed property that the debtor held as a trustee for\\nothers, but as the treatment of the Texas unclaimed property rights demonstrates, there is\\nreason for skepticism.\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408602/\", \"author_raw\": \"EDITH H. JONES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"DENNIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631349/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In the MATTER OF: LINN ENERGY, L.L.C.; Berry Petroleum Company, L.L.C.; LinnCo, L.L.C.; Linn Acquisition Company, L.L.C. ; Linn Energy Finance Corporation ; Linn Energy Holdings, L.L.C. ; Linn Exploration & Production Michigan, L.L.C. ; Linn Exploration Midcontinent, L.L.C. ; Linn Midstream, L.L.C. ; Linn Midwest Energy, L.L.C. ; Linn Operating, Incorporated; Mid-Continent I, L.L.C. ; Mid-Continent II, L.L.C. ; Mid-Continent Holdings I, L.L.C. ; Mid-Continent Holdings II, L.L.C., Debtors Oklahoma State Treasurer, Unclaimed Property Division, Appellee v. Linn Operating, Incorporated, Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40575 Document: 00515002398 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n June 19, 2019\n No. 18-40575\n Lyle W. Cayce\n Clerk\nIn the Matter of: LINN ENERGY, L.L.C.; BERRY PETROLEUM\nCOMPANY, L.L.C.; LINNCO, L.L.C.; LINN ACQUISITION COMPANY,\nL.L.C.; LINN ENERGY FINANCE CORPORATION; LINN ENERGY\nHOLDINGS, L.L.C.; LINN EXPLORATION & PRODUCTION MICHIGAN,\nL.L.C.; LINN EXPLORATION MIDCONTINENT, L.L.C.; LINN\nMIDSTREAM, L.L.C.; LINN MIDWEST ENERGY, L.L.C.; LINN\nOPERATING, INCORPORATED; MID-CONTINENT I, L.L.C.; MID-\nCONTINENT II, L.L.C.; MID-CONTINENT HOLDINGS I, L.L.C.; MID-\nCONTINENT HOLDINGS II, L.L.C.,\n\n Debtors\n\nOKLAHOMA STATE TREASURER, Unclaimed Property Division,\n\n Appellee\n\nv.\n\nLINN OPERATING, INCORPORATED,\n\n Appellant\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\nEDITH H. JONES, Circuit Judge:\n The district court held that the bankruptcy court erred in dismissing a\npost-confirmation attempt by the Oklahoma State Treasurer (“Treasurer”) to\nobtain the right to unclaimed royalty payments owed by the oil and gas debtor.\n\f Case: 18-40575 Document: 00515002398 Page: 2 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\nBecause the Treasurer sat on its rights during the entire Chapter 11 process,\nres judicata bars its claim. We REVERSE the district court judgment and\nreinstate the bankruptcy court’s DISMISSAL of the Treasurer’s case.\n I. BACKGROUND\n Linn Energy, LLC (“Linn”) is an oil and gas company that operates in\nTexas and Oklahoma. In May 2016, Linn and fourteen affiliated entities filed\nvoluntary petitions for relief under Chapter 11 of the Bankruptcy Code. The\nbankruptcy court set a deadline requiring all “Proofs of Claims” from “[a]ll\ngovernmental units holding claims . . . that arose . . . prior to the Petition Date”\nto be filed by November 7, 2016. The Treasurer timely filed three proofs of\nclaim on August 29 for “unknown/contingent” amounts, which it described as\n“unsecured.” The Treasurer stated that it had filed the claim pursuant to\nOklahoma’s “unclaimed property law,” and that it was “acting as a conservator\nor custodian on behalf of the classes of persons . . . who have failed to claim\nproperty owing to them for the statutory period of abandonment.”\n In November 2016, Linn filed a report with the Treasurer indicating that\nit possessed $956,212.72 in unclaimed property but did not transfer those\nassets to the Treasurer. The Treasurer contends that Linn was required by\nstate law to deliver the unclaimed-property funds when it filed the report, but\nit did not then file an adversary complaint demanding that Linn turn over the\nfunds. Significantly, on December 5, the Texas Comptroller filed an adversary\ncomplaint against Linn for unclaimed property owed to Texas residents after\nLinn disclosed $1.5 million in unclaimed-property holdings to that agency. See\nComplaint for Turnover and Payment of Unclaimed Property and Related\nRelief, In re Linn Energy, LLC, No. 16-06023 (Bankr. S.D. Tex. Dec. 5, 2016),\nECF No. 1.\n On December 19, Linn sent all claimants in the bankruptcy case—\nincluding the Treasurer and the Texas Comptroller—a ballot for voting on its\n 2\n\f Case: 18-40575 Document: 00515002398 Page: 3 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\nproposed Plan of Reorganization (“the Plan”). The Treasurer did not vote, but\nthe Texas Comptroller filed an objection to confirmation because the Plan\npurported to distribute the unclaimed property assets of Texas residents, as\nunsecured assets, among parties other than the Comptroller. 1 On January 27,\n2017, the bankruptcy court entered an order confirming the Plan, but the order\nexpressly authorized the Texas Comptroller to pursue its claims for unclaimed\nproperty.\n Several features of the Plan are critical here. First, a section titled\n“Preservation of Royalty and Working Interests” provided that “any right to\npayment from a Royalty and Working interest, if any, shall be treated as a\nLinn General Unsecured Claim under this Plan and shall be subject to any\ndischarge and/or release provided hereunder.” Second, the vesting clause\nstated that, except as otherwise provided in the Plan, “all property in each\nEstate, all Causes of Action, and any property acquired by any of the Linn\nDebtors pursuant to the Plan shall vest in [Linn], free and clear of all Liens,\nClaims, charges, Interests, or other encumbrances” once the Plan became final.\nFinally, the Plan’s discharge provision stated that, pursuant to Section 1141(d)\nof the Bankruptcy Code, and except as otherwise stated by the Plan, “the\ndistributions, rights, and treatment that are provided in the Plan shall be in\ncomplete satisfaction, discharge, and release, effective as of the Effective\nDate[ ] of Claims[,] . . . Interests, and Causes of Action of any nature\nwhatsoever.” That section of the Plan further enjoins any parties to the\nproceedings from commencing or continuing a claim related to the bankruptcy\nestate after the Plan received final approval.\n\n\n\n 1 See Texas Comptroller of Public Accounts Objection to Confirmation of the Linn Plan\n[Dkt. No. 1333] and the Berry Plan [Dkt. No. 1390], In re Linn Energy, LLC, No. 16-60040\n(Bankr. S.D. Tex. Jan. 17, 2017), ECF No. 1548.\n\n 3\n\f Case: 18-40575 Document: 00515002398 Page: 4 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\n All parties to the bankruptcy case had fourteen days in which to appeal\nthe order, see Fed. R. Bankr. P. 8002, and on the final day of the appeal period,\na group of claimants moved for reconsideration and relief from the order. 2\nAfter the claimants agreed to a stipulation with Linn, the motion for\nreconsideration was withdrawn with prejudice on March 6. 3 Thereafter, no\nclaimant appealed the order or moved for reconsideration, and the\nconfirmation became final on March 20.\n About two months later, Linn objected to the Treasurer’s proofs of claim\nfor “unknown contingent” unclaimed property, asserting that it was not liable\nfor such claims and that the Bankruptcy Code preempted state unclaimed\nproperty laws. The Treasurer responded to the objection and then filed an\nadversary complaint against Linn. The Treasurer asserted that Linn\npossessed, but did not own, $965,216.72 in unclaimed property consisting of\ninvestors’ mineral royalties from Linn’s Oklahoma oil and gas operations and\nthat Linn was required by Oklahoma law to turn over the funds to the\nTreasurer.\n Linn moved to dismiss the Treasurer’s adversary complaint pursuant to\nBankruptcy Rule 7012(b)(6), analogous to Fed. R. Civ. P. 12(b)(6), asserting\nthat the claim violated the Plan’s injunction, vesting, and discharge provisions\nand was barred by the principles of res judicata and preemption. The\nTreasurer re-emphasized that the unclaimed property never belonged to Linn.\n\n\n\n 2See James H. Niven’s, Charles E. Hinkle’s, and Bianchi Family Ltd. Partnership’s\nMotion for Reconsideration of Purported Disallowance of Claims; Relief from the\nConfirmation Order; or, in the Alterative, to Alter or Amend Cure Amount in the\nConfirmation Order, In re Linn Energy, LLC, No. 16-60040 (Bankr. S.D. Tex. Feb. 10, 2017),\nECF No. 1691.\n\n 3 See Stipulation and Agreed Order Between Debtors James H. Niven, Charles E.\nHinkle, and Bianchi Family Ltd. Partnership, In re Linn, LLC, No. 16-60040 (Bankr. S.D.\nTex. Mar. 6, 2017), ECF No. 1779.\n 4\n\f Case: 18-40575 Document: 00515002398 Page: 5 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\nConsequently, it never became part of the bankruptcy estate and could not be\ngoverned by the Plan. After a hearing, the bankruptcy court sided with Linn.\nGranting the motion to dismiss, the court concluded that the Treasurer had\n“received more than adequate due process,” and that its complaint amounted\nto a prohibited “collateral attack” on the confirmed Plan.\n The Treasurer appealed to the district court, which reversed the\nbankruptcy court’s dismissal on the grounds that the unclaimed property never\nbecame part of the bankruptcy estate, and therefore the bankruptcy court did\nnot have jurisdiction to adjudicate its status. Linn moved for rehearing, but\nthe district court denied the motion. Linn timely appealed.\n II. STANDARD OF REVIEW\n This court reviews “the decision of a district court sitting as an appellate\ncourt in a bankruptcy case by applying the same standards of review to the\nbankruptcy court’s findings of fact and conclusions of law as applied by the\ndistrict court.” In re Lopez, 897 F.3d 663, 668 (5th Cir. 2018) (internal\nquotation marks and citations omitted). As such, this court acts “as a second\nreview court” and reviews the bankruptcy court’s conclusions of law de novo\nand its findings of fact for clear error. Id. (internal quotation marks and\ncitations omitted).\n III. DISCUSSION\n Linn advances four arguments challenging the district court’s decision.\nFirst, Linn argues that, contrary to the district court’s determination, the\nunclaimed property is part of the bankruptcy estate and subject to the Plan. 4\n\n\n\n 4 The Treasurer spends a significant portion of its brief asserting that Linn waived\nthis argument because, allegedly, Linn did not raise the issue until its motion for rehearing\nin the district court. That argument is belied both by Linn’s briefs and by the Treasurer’s\nown briefs in the bankruptcy court. In response to Linn’s motion to dismiss the Treasurer’s\nadversary complaint, for example, the Treasurer argued that judicial estoppel should prevent\nLinn from claiming that the unclaimed property was part of the bankruptcy estate because\n 5\n\f Case: 18-40575 Document: 00515002398 Page: 6 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\nSecond, Linn argues that the bankruptcy court correctly determined that the\nPlan and ensuing Confirmation Order constitute a final judgment that the\nTreasurer may not collaterally attack, and that the principles of res judicata\nbar the Treasurer’s untimely adverse complaint. Third, Linn argues that the\nTreasurer had no “right to payment” under Oklahoma’s unclaimed property\nlaws as of the date of the bankruptcy petition and, therefore, the Bankruptcy\nCode barred the Treasurer’s claims. Finally, Linn argues that, to the extent\nthat the Bankruptcy Code and Oklahoma’s unclaimed property law are in\ntension with one another, the Bankruptcy Code preempts Oklahoma state law.\n This court need not address the merits of Linn’s first, third, and fourth\narguments because Linn’s second argument is correct—the bankruptcy court’s\napproval of the Plan and the ensuing confirmation order constitute a final\njudgment that may not be collaterally attacked.\n In Travelers Indemnity Co. v. Bailey, the Supreme Court held that final\nbankruptcy orders (i.e., orders that are affirmed upon direct review, or, as in\nthis case, not appealed or contested) become “res judicata to the parties and\nthose in privity with them, not only as to every matter which was offered and\nreceived to sustain or defeat the claim or demand, but as to any other\nadmissible matter which might have been offered for that purpose.”\n557 U.S. 137, 152, 129 S. Ct. 2195, 2205 (2009) (internal quotation marks and\ncitation omitted). The Court explicitly held that this principle applies “whether\nor not [the orders were] proper exercises of bankruptcy court jurisdiction and\npower” at the time they became final. Id.\n\n\n\n\n“only after” the bankruptcy court entered the confirmation order “did [Linn] change positions\nand claim that the Admitted Unclaimed Property is property of the estate.” Whatever the\nhistory of Linn’s positions in the bankruptcy proceedings before the final order was entered,\nit is clear that Linn has argued from the outset in this litigation that the unclaimed property\nfunds were property of the bankruptcy estate. Accordingly, the argument is not waived.\n 6\n\f Case: 18-40575 Document: 00515002398 Page: 7 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\n Thus, when parties to a bankruptcy case have been given “a fair chance\nto challenge [a] [b]ankruptcy [c]ourt’s subject-matter jurisdiction” or a\nprovision of a plan approved by the bankruptcy court during the case and fail\nto do so, they cannot challenge the court’s order later through a collateral\nattack. Id. at 153, 129 S. Ct. at 2206. This court has repeatedly recognized the\ncollateral bar established by Travelers. See, e.g., In re Davis Offshore, L.P.,\n644 F.3d 259, 265 (5th Cir. 2011) (“Travelers held that a bankruptcy court’s\nplan confirmation order cannot, after it becomes final, be collaterally attacked\nby parties to the case or those in privity with them on grounds that it exceeded\nthe bankruptcy court’s jurisdiction.”).\n Here, the Plan submitted by Linn to claimants clearly stated that\nunclaimed mineral royalties would be treated as unsecured debt, that upon the\nPlan’s approval all remaining property would vest in Linn, and that no parties\ncould bring further claims against Linn after the Plan became final. Despite\nample opportunity provided by the Bankruptcy Code and the court’s\nprocedures, the Treasurer neither voted on the Plan nor contested its\ntreatment of the unclaimed property in question. That the Treasurer had a\nfair chance to challenge the Plan’s disposition of unclaimed property in\nOklahoma is highlighted by the fact that a similarly-situated party, the Texas\nComptroller, did object to the Plan’s treatment of unclaimed property in Texas\nand successfully excluded that property from the Plan.\n The Treasurer cites Pearlman v. Reliance Insurance Co., 371 U.S. 132,\n135–36, 83 S. Ct. 232, 234 (1962), which held that the former Bankruptcy Act\ndoes not permit bankruptcy trustees to distribute the property of other\npersons. While that proposition is sound as a general principle, the Treasurer’s\nreliance on Pearlman in this case is misplaced. Pearlman evaluated the\nlegality of a bankruptcy plan on direct review; here, the Treasurer had an\nopportunity to challenge the Plan in the normal course of proceedings (as the\n 7\n\f Case: 18-40575 Document: 00515002398 Page: 8 Date Filed: 06/19/2019\n\n\n\n No. 18-40575\nTexas Comptroller did) but did not avail itself of that opportunity. Travelers,\ndecided decades after Pearlman, explicitly precludes collateral attacks on final\nbankruptcy orders by parties to the proceedings “whether or not [they] were\nproper exercises of bankruptcy court jurisdiction and power” in the first\ninstance. 5 557 U.S. at 152, 129 S. Ct. at 2205. To hold otherwise would upend\nthe need for finality in the judicial system, because “this sort of collateral\nattack cannot be squared with res judicata and the practical necessity served\nby that rule. It is just as important that there should be a place to end as that\nthere should be a place to begin litigation.” Id. at 154, 129 S. Ct. at 2206\n(internal quotation marks and citation omitted).\n In short, the Treasurer asks this court to “tunnel back” into a completed\nproceeding “for the purposes of reassessing prior jurisdiction de novo.” Id.\n(internal quotation marks and citation omitted). We decline to do so. Because\nthe Treasurer failed to participate in the bankruptcy case and object to or\nappeal the Plan’s disposition of the Oklahoma unclaimed property in the\nnormal course, its challenge is too late now. The bankruptcy court’s dismissal\nof the Treasurer’s adversary complaint based on res judicata was correct\n IV. CONCLUSION\n For the foregoing reasons, this court REVERSES the district court’s\nreversal of the judgment entered by the bankruptcy court. The bankruptcy\ncourt’s decision to DISMISS the Treasurer’s complaint is reinstated.\n\n\n\n\n 5 This court has no occasion to rule on the propriety of the bankruptcy plan to the\nextent it purported to distribute unclaimed property that the debtor held as a trustee for\nothers, but as the treatment of the Texas unclaimed property rights demonstrates, there is\nreason for skepticism.\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In the MATTER OF: LINN ENERGY, L.L.C.; Berry Petroleum Company, L.L.C.; LinnCo, L.L.C.; Linn Acquisition Company, L.L.C. ; Linn Energy Finance Corporation ; Linn Energy Holdings, L.L.C. ; Linn Exploration & Production Michigan, L.L.C. ; Linn Exploration Midcontinent, L.L.C. ; Linn Midstream, L.L.C. ; Linn Midwest Energy, L.L.C. ; Linn Operating, Incorporated; Mid-Continent I, L.L.C. ; Mid-Continent II, L.L.C. ; Mid-Continent Holdings I, L.L.C. ; Mid-Continent Holdings II, L.L.C., Debtors Oklahoma State Treasurer, Unclaimed Property Division, Appellee v. Linn Operating, Incorporated, Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40575 Document: 00515002398 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 19, 2019\\n No. 18-40575\\n Lyle W. Cayce\\n Clerk\\nIn the Matter of: LINN ENERGY, L.L.C.; BERRY PETROLEUM\\nCOMPANY, L.L.C.; LINNCO, L.L.C.; LINN ACQUISITION COMPANY,\\nL.L.C.; LINN ENERGY FINANCE CORPORATION; LINN ENERGY\\nHOLDINGS, L.L.C.; LINN EXPLORATION & PRODUCTION MICHIGAN,\\nL.L.C.; LINN EXPLORATION MIDCONTINENT, L.L.C.; LINN\\nMIDSTREAM, L.L.C.; LINN MIDWEST ENERGY, L.L.C.; LINN\\nOPERATING, INCORPORATED; MID-CONTINENT I, L.L.C.; MID-\\nCONTINENT II, L.L.C.; MID-CONTINENT HOLDINGS I, L.L.C.; MID-\\nCONTINENT HOLDINGS II, L.L.C.,\\n\\n Debtors\\n\\nOKLAHOMA STATE TREASURER, Unclaimed Property Division,\\n\\n Appellee\\n\\nv.\\n\\nLINN OPERATING, INCORPORATED,\\n\\n Appellant\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n The district court held that the bankruptcy court erred in dismissing a\\npost-confirmation attempt by the Oklahoma State Treasurer (“Treasurer”) to\\nobtain the right to unclaimed royalty payments owed by the oil and gas debtor.\\n\\f Case: 18-40575 Document: 00515002398 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nBecause the Treasurer sat on its rights during the entire Chapter 11 process,\\nres judicata bars its claim. We REVERSE the district court judgment and\\nreinstate the bankruptcy court’s DISMISSAL of the Treasurer’s case.\\n I. BACKGROUND\\n Linn Energy, LLC (“Linn”) is an oil and gas company that operates in\\nTexas and Oklahoma. In May 2016, Linn and fourteen affiliated entities filed\\nvoluntary petitions for relief under Chapter 11 of the Bankruptcy Code. The\\nbankruptcy court set a deadline requiring all “Proofs of Claims” from “[a]ll\\ngovernmental units holding claims . . . that arose . . . prior to the Petition Date”\\nto be filed by November 7, 2016. The Treasurer timely filed three proofs of\\nclaim on August 29 for “unknown/contingent” amounts, which it described as\\n“unsecured.” The Treasurer stated that it had filed the claim pursuant to\\nOklahoma’s “unclaimed property law,” and that it was “acting as a conservator\\nor custodian on behalf of the classes of persons . . . who have failed to claim\\nproperty owing to them for the statutory period of abandonment.”\\n In November 2016, Linn filed a report with the Treasurer indicating that\\nit possessed $956,212.72 in unclaimed property but did not transfer those\\nassets to the Treasurer. The Treasurer contends that Linn was required by\\nstate law to deliver the unclaimed-property funds when it filed the report, but\\nit did not then file an adversary complaint demanding that Linn turn over the\\nfunds. Significantly, on December 5, the Texas Comptroller filed an adversary\\ncomplaint against Linn for unclaimed property owed to Texas residents after\\nLinn disclosed $1.5 million in unclaimed-property holdings to that agency. See\\nComplaint for Turnover and Payment of Unclaimed Property and Related\\nRelief, In re Linn Energy, LLC, No. 16-06023 (Bankr. S.D. Tex. Dec. 5, 2016),\\nECF No. 1.\\n On December 19, Linn sent all claimants in the bankruptcy case—\\nincluding the Treasurer and the Texas Comptroller—a ballot for voting on its\\n 2\\n\\f Case: 18-40575 Document: 00515002398 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nproposed Plan of Reorganization (“the Plan”). The Treasurer did not vote, but\\nthe Texas Comptroller filed an objection to confirmation because the Plan\\npurported to distribute the unclaimed property assets of Texas residents, as\\nunsecured assets, among parties other than the Comptroller. 1 On January 27,\\n2017, the bankruptcy court entered an order confirming the Plan, but the order\\nexpressly authorized the Texas Comptroller to pursue its claims for unclaimed\\nproperty.\\n Several features of the Plan are critical here. First, a section titled\\n“Preservation of Royalty and Working Interests” provided that “any right to\\npayment from a Royalty and Working interest, if any, shall be treated as a\\nLinn General Unsecured Claim under this Plan and shall be subject to any\\ndischarge and/or release provided hereunder.” Second, the vesting clause\\nstated that, except as otherwise provided in the Plan, “all property in each\\nEstate, all Causes of Action, and any property acquired by any of the Linn\\nDebtors pursuant to the Plan shall vest in [Linn], free and clear of all Liens,\\nClaims, charges, Interests, or other encumbrances” once the Plan became final.\\nFinally, the Plan’s discharge provision stated that, pursuant to Section 1141(d)\\nof the Bankruptcy Code, and except as otherwise stated by the Plan, “the\\ndistributions, rights, and treatment that are provided in the Plan shall be in\\ncomplete satisfaction, discharge, and release, effective as of the Effective\\nDate[ ] of Claims[,] . . . Interests, and Causes of Action of any nature\\nwhatsoever.” That section of the Plan further enjoins any parties to the\\nproceedings from commencing or continuing a claim related to the bankruptcy\\nestate after the Plan received final approval.\\n\\n\\n\\n 1 See Texas Comptroller of Public Accounts Objection to Confirmation of the Linn Plan\\n[Dkt. No. 1333] and the Berry Plan [Dkt. No. 1390], In re Linn Energy, LLC, No. 16-60040\\n(Bankr. S.D. Tex. Jan. 17, 2017), ECF No. 1548.\\n\\n 3\\n\\f Case: 18-40575 Document: 00515002398 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\n All parties to the bankruptcy case had fourteen days in which to appeal\\nthe order, see Fed. R. Bankr. P. 8002, and on the final day of the appeal period,\\na group of claimants moved for reconsideration and relief from the order. 2\\nAfter the claimants agreed to a stipulation with Linn, the motion for\\nreconsideration was withdrawn with prejudice on March 6. 3 Thereafter, no\\nclaimant appealed the order or moved for reconsideration, and the\\nconfirmation became final on March 20.\\n About two months later, Linn objected to the Treasurer’s proofs of claim\\nfor “unknown contingent” unclaimed property, asserting that it was not liable\\nfor such claims and that the Bankruptcy Code preempted state unclaimed\\nproperty laws. The Treasurer responded to the objection and then filed an\\nadversary complaint against Linn. The Treasurer asserted that Linn\\npossessed, but did not own, $965,216.72 in unclaimed property consisting of\\ninvestors’ mineral royalties from Linn’s Oklahoma oil and gas operations and\\nthat Linn was required by Oklahoma law to turn over the funds to the\\nTreasurer.\\n Linn moved to dismiss the Treasurer’s adversary complaint pursuant to\\nBankruptcy Rule 7012(b)(6), analogous to Fed. R. Civ. P. 12(b)(6), asserting\\nthat the claim violated the Plan’s injunction, vesting, and discharge provisions\\nand was barred by the principles of res judicata and preemption. The\\nTreasurer re-emphasized that the unclaimed property never belonged to Linn.\\n\\n\\n\\n 2See James H. Niven’s, Charles E. Hinkle’s, and Bianchi Family Ltd. Partnership’s\\nMotion for Reconsideration of Purported Disallowance of Claims; Relief from the\\nConfirmation Order; or, in the Alterative, to Alter or Amend Cure Amount in the\\nConfirmation Order, In re Linn Energy, LLC, No. 16-60040 (Bankr. S.D. Tex. Feb. 10, 2017),\\nECF No. 1691.\\n\\n 3 See Stipulation and Agreed Order Between Debtors James H. Niven, Charles E.\\nHinkle, and Bianchi Family Ltd. Partnership, In re Linn, LLC, No. 16-60040 (Bankr. S.D.\\nTex. Mar. 6, 2017), ECF No. 1779.\\n 4\\n\\f Case: 18-40575 Document: 00515002398 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nConsequently, it never became part of the bankruptcy estate and could not be\\ngoverned by the Plan. After a hearing, the bankruptcy court sided with Linn.\\nGranting the motion to dismiss, the court concluded that the Treasurer had\\n“received more than adequate due process,” and that its complaint amounted\\nto a prohibited “collateral attack” on the confirmed Plan.\\n The Treasurer appealed to the district court, which reversed the\\nbankruptcy court’s dismissal on the grounds that the unclaimed property never\\nbecame part of the bankruptcy estate, and therefore the bankruptcy court did\\nnot have jurisdiction to adjudicate its status. Linn moved for rehearing, but\\nthe district court denied the motion. Linn timely appealed.\\n II. STANDARD OF REVIEW\\n This court reviews “the decision of a district court sitting as an appellate\\ncourt in a bankruptcy case by applying the same standards of review to the\\nbankruptcy court’s findings of fact and conclusions of law as applied by the\\ndistrict court.” In re Lopez, 897 F.3d 663, 668 (5th Cir. 2018) (internal\\nquotation marks and citations omitted). As such, this court acts “as a second\\nreview court” and reviews the bankruptcy court’s conclusions of law de novo\\nand its findings of fact for clear error. Id. (internal quotation marks and\\ncitations omitted).\\n III. DISCUSSION\\n Linn advances four arguments challenging the district court’s decision.\\nFirst, Linn argues that, contrary to the district court’s determination, the\\nunclaimed property is part of the bankruptcy estate and subject to the Plan. 4\\n\\n\\n\\n 4 The Treasurer spends a significant portion of its brief asserting that Linn waived\\nthis argument because, allegedly, Linn did not raise the issue until its motion for rehearing\\nin the district court. That argument is belied both by Linn’s briefs and by the Treasurer’s\\nown briefs in the bankruptcy court. In response to Linn’s motion to dismiss the Treasurer’s\\nadversary complaint, for example, the Treasurer argued that judicial estoppel should prevent\\nLinn from claiming that the unclaimed property was part of the bankruptcy estate because\\n 5\\n\\f Case: 18-40575 Document: 00515002398 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nSecond, Linn argues that the bankruptcy court correctly determined that the\\nPlan and ensuing Confirmation Order constitute a final judgment that the\\nTreasurer may not collaterally attack, and that the principles of res judicata\\nbar the Treasurer’s untimely adverse complaint. Third, Linn argues that the\\nTreasurer had no “right to payment” under Oklahoma’s unclaimed property\\nlaws as of the date of the bankruptcy petition and, therefore, the Bankruptcy\\nCode barred the Treasurer’s claims. Finally, Linn argues that, to the extent\\nthat the Bankruptcy Code and Oklahoma’s unclaimed property law are in\\ntension with one another, the Bankruptcy Code preempts Oklahoma state law.\\n This court need not address the merits of Linn’s first, third, and fourth\\narguments because Linn’s second argument is correct—the bankruptcy court’s\\napproval of the Plan and the ensuing confirmation order constitute a final\\njudgment that may not be collaterally attacked.\\n In Travelers Indemnity Co. v. Bailey, the Supreme Court held that final\\nbankruptcy orders (i.e., orders that are affirmed upon direct review, or, as in\\nthis case, not appealed or contested) become “res judicata to the parties and\\nthose in privity with them, not only as to every matter which was offered and\\nreceived to sustain or defeat the claim or demand, but as to any other\\nadmissible matter which might have been offered for that purpose.”\\n557 U.S. 137, 152, 129 S. Ct. 2195, 2205 (2009) (internal quotation marks and\\ncitation omitted). The Court explicitly held that this principle applies “whether\\nor not [the orders were] proper exercises of bankruptcy court jurisdiction and\\npower” at the time they became final. Id.\\n\\n\\n\\n\\n“only after” the bankruptcy court entered the confirmation order “did [Linn] change positions\\nand claim that the Admitted Unclaimed Property is property of the estate.” Whatever the\\nhistory of Linn’s positions in the bankruptcy proceedings before the final order was entered,\\nit is clear that Linn has argued from the outset in this litigation that the unclaimed property\\nfunds were property of the bankruptcy estate. Accordingly, the argument is not waived.\\n 6\\n\\f Case: 18-40575 Document: 00515002398 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\n Thus, when parties to a bankruptcy case have been given “a fair chance\\nto challenge [a] [b]ankruptcy [c]ourt’s subject-matter jurisdiction” or a\\nprovision of a plan approved by the bankruptcy court during the case and fail\\nto do so, they cannot challenge the court’s order later through a collateral\\nattack. Id. at 153, 129 S. Ct. at 2206. This court has repeatedly recognized the\\ncollateral bar established by Travelers. See, e.g., In re Davis Offshore, L.P.,\\n644 F.3d 259, 265 (5th Cir. 2011) (“Travelers held that a bankruptcy court’s\\nplan confirmation order cannot, after it becomes final, be collaterally attacked\\nby parties to the case or those in privity with them on grounds that it exceeded\\nthe bankruptcy court’s jurisdiction.”).\\n Here, the Plan submitted by Linn to claimants clearly stated that\\nunclaimed mineral royalties would be treated as unsecured debt, that upon the\\nPlan’s approval all remaining property would vest in Linn, and that no parties\\ncould bring further claims against Linn after the Plan became final. Despite\\nample opportunity provided by the Bankruptcy Code and the court’s\\nprocedures, the Treasurer neither voted on the Plan nor contested its\\ntreatment of the unclaimed property in question. That the Treasurer had a\\nfair chance to challenge the Plan’s disposition of unclaimed property in\\nOklahoma is highlighted by the fact that a similarly-situated party, the Texas\\nComptroller, did object to the Plan’s treatment of unclaimed property in Texas\\nand successfully excluded that property from the Plan.\\n The Treasurer cites Pearlman v. Reliance Insurance Co., 371 U.S. 132,\\n135–36, 83 S. Ct. 232, 234 (1962), which held that the former Bankruptcy Act\\ndoes not permit bankruptcy trustees to distribute the property of other\\npersons. While that proposition is sound as a general principle, the Treasurer’s\\nreliance on Pearlman in this case is misplaced. Pearlman evaluated the\\nlegality of a bankruptcy plan on direct review; here, the Treasurer had an\\nopportunity to challenge the Plan in the normal course of proceedings (as the\\n 7\\n\\f Case: 18-40575 Document: 00515002398 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-40575\\nTexas Comptroller did) but did not avail itself of that opportunity. Travelers,\\ndecided decades after Pearlman, explicitly precludes collateral attacks on final\\nbankruptcy orders by parties to the proceedings “whether or not [they] were\\nproper exercises of bankruptcy court jurisdiction and power” in the first\\ninstance. 5 557 U.S. at 152, 129 S. Ct. at 2205. To hold otherwise would upend\\nthe need for finality in the judicial system, because “this sort of collateral\\nattack cannot be squared with res judicata and the practical necessity served\\nby that rule. It is just as important that there should be a place to end as that\\nthere should be a place to begin litigation.” Id. at 154, 129 S. Ct. at 2206\\n(internal quotation marks and citation omitted).\\n In short, the Treasurer asks this court to “tunnel back” into a completed\\nproceeding “for the purposes of reassessing prior jurisdiction de novo.” Id.\\n(internal quotation marks and citation omitted). We decline to do so. Because\\nthe Treasurer failed to participate in the bankruptcy case and object to or\\nappeal the Plan’s disposition of the Oklahoma unclaimed property in the\\nnormal course, its challenge is too late now. The bankruptcy court’s dismissal\\nof the Treasurer’s adversary complaint based on res judicata was correct\\n IV. CONCLUSION\\n For the foregoing reasons, this court REVERSES the district court’s\\nreversal of the judgment entered by the bankruptcy court. The bankruptcy\\ncourt’s decision to DISMISS the Treasurer’s complaint is reinstated.\\n\\n\\n\\n\\n 5 This court has no occasion to rule on the propriety of the bankruptcy plan to the\\nextent it purported to distribute unclaimed property that the debtor held as a trustee for\\nothers, but as the treatment of the Texas unclaimed property rights demonstrates, there is\\nreason for skepticism.\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2465,"cells":{"id":{"kind":"number","value":4631352,"string":"4,631,352"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Cathy Bowles v. OneMain Financial Group, LLC"},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"18-60749"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, COSTA, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"E. GRADY JOLLY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-60749 Document: 00515002949 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n United States Court of Appeals\\n\\n No. 18-60749\\n Fifth Circuit\\n\\n FILED\\n Summary Calendar June 19, 2019\\n Lyle W. Cayce\\nCATHY J. BOWLES, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nONEMAIN FINANCIAL GROUP, L.L.C.,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore JOLLY, COSTA, and HO, Circuit Judges.\\nE. GRADY JOLLY, Circuit Judge:\\n Cathy Bowles appeals the district court’s order compelling the\\narbitration of her federal age discrimination suit against OneMain Financial.\\nBowles objected to arbitration on the grounds that a valid arbitration\\nagreement was never formed between her and OneMain for two reasons: first,\\nthere was no meeting of the minds and, second, the circumstances surrounding\\nthe arbitration agreement’s formation render it procedurally unconscionable.\\nAlthough the district court correctly rejected Bowles’s meeting of the minds\\n\\f Case: 18-60749 Document: 00515002949 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nargument, it erroneously referred her procedural unconscionability 1 challenge\\nto the arbitrator. Because procedural unconscionability goes to contract\\nformation under Mississippi law, the district court should have ruled on this\\nobjection. Accordingly, we REVERSE and VACATE the district court’s order\\nand REMAND to the district court to decide the merits of Bowles’s procedural\\nunconscionability claim.\\n I.\\n Bowles had worked for OneMain Financial Group and its predecessors\\nsince 1998. Over that period she had agreed several times through\\nemployment contracts and acknowledgments of employee handbooks to refer\\nall employment disputes to arbitration. In 2016, Bowles was again required to\\nreview and acknowledge OneMain’s Employee Dispute Resolution\\nProgram/Agreement (“Arbitration Agreement”). This Arbitration Agreement\\nprovides that any employment-related dispute will be referred to arbitration\\nin accordance with the rules and procedures of the American Arbitration\\nAssociation. In addition, the Arbitration Agreement contained a delegation\\n\\n\\n\\n 1 We recently set out the difference between procedural and substantive\\nunconscionability under Mississippi law:\\n Under substantive unconscionability, we look within the four corners of an\\n agreement in order to discover any abuses relating to the specific terms which\\n violate the expectations of, or cause gross disparity between, the contracting\\n parties. Procedural unconscionability may be proved by showing a lack of\\n knowledge, lack of voluntariness, inconspicuous print, the use of complex\\n legalistic language, disparity in sophistication or bargaining power of the\\n parties and/or a lack of opportunity to study the contract and inquire about the\\n contract terms.\\nBegole v. N. Miss. Med. Ctr., Inc., 761 F. App’x 248, 251 (5th Cir. 2019) (internal citations and\\nquotation marks omitted). Neither party disputes that Bowles’s objection is to procedural\\nrather than substantive unconscionability. Furthermore, by using the term “procedural\\nunconscionability” and grounding her objection in disparate bargaining power, her lack of a\\nmeaningful opportunity to bargain, and fraud in procuring her assent, we are convinced that\\nBowles’s objection is indeed to procedural unconscionability.\\n\\n 2\\n\\f Case: 18-60749 Document: 00515002949 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nclause, which delegated to the arbitrator as follows: “any legal dispute . . .\\narising out of, relating to, or concerning the validity, enforceability or breach\\nof this Agreement, shall be resolved by final and binding arbitration.” On\\nNovember 15, 2016, Bowles viewed the Arbitration Agreement 2 and\\nelectronically signed a certificate that reads: “I hereby certify that I have\\ncarefully read the Employment Dispute Resolution Program/Agreement within\\nand that I understand and agree to its terms.”\\n In October 2017, OneMain terminated Bowles for allegedly\\ninappropriate interactions with employees under her supervision. Bowles filed\\nan unsuccessful administrative complaint with the EEOC. She next filed suit\\nin federal court alleging that her termination violated the Age Discrimination\\nin Employment Act and Title VII of the Civil Rights Act of 1964. In response,\\nOneMain moved the district court, under the Federal Arbitration Act, 3 to\\ncompel Bowles to arbitrate her claims pursuant to the 2016 Arbitration\\nAgreement.\\n Bowles objected to OneMain’s motion to compel by challenging the\\nformation of the Arbitration Agreement itself on two grounds. First, she\\nargued that there was no “meeting of the minds” because she did not\\nunderstand that she was agreeing to a binding arbitration agreement and\\n\\n\\n 2 Before signing, the software required Bowles to open the Arbitration Agreement.\\n 3 The Federal Arbitration Act provides that:\\n A written provision in any maritime transaction or a contract\\n evidencing a transaction involving commerce to settle by arbitration a\\n controversy thereafter arising out of such contract or transaction, or the\\n refusal to perform the whole or any part thereof, or an agreement in\\n writing to submit to arbitration an existing controversy arising out of\\n such a contract, transaction, or refusal, shall be valid, irrevocable, and\\n enforceable, save upon such grounds as exist at law or in equity for the\\n revocation of any contract.\\n 9 U.S.C. § 2.\\n\\n 3\\n\\f Case: 18-60749 Document: 00515002949 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\ntherefore there was not the mutual assent necessary for contract formation\\nunder Mississippi law. Second, she argued that the Agreement was\\nprocedurally unconscionable because her assent was obtained through\\nmisrepresentation, she never had a meaningful opportunity to bargain, and\\nthere was a gross disparity in the parties’ bargaining power.\\n The district court granted OneMain’s motion to compel and dismissed\\nthe case with prejudice. It first found that there was the meeting of the minds\\nnecessary for contract formation in Mississippi. Next, instead of considering\\nBowles’s procedural unconscionability claim on the merits, the district court\\nfound that “[c]laims of unconscionability do not affect whether an arbitration\\nagreement has been entered but, instead, such claims permit a court to\\ninvalidate an otherwise existing agreement.” Thus, reasoning that Bowles’s\\nprocedural unconscionability objection went to the enforceability of the\\nArbitration Agreement and not its formation, the court held that this argument\\nmust be decided by the arbitrator under the Arbitration Agreement’s\\ndelegation clause. Accordingly, the district court granted OneMain’s motion to\\ncompel arbitration and dismissed the case with prejudice.\\n Bowles has now appealed arguing that the district court incorrectly\\nupheld the validity of the Arbitration Agreement on the erroneous ground that\\nthere was a meeting of the minds, and further erred by referring her procedural\\nunconscionability claim to the arbitrator when, under Mississippi law, such\\nobjections are for the court to decide.\\n II.\\n “This court reviews the grant or denial of a motion to compel arbitration\\nde novo.” Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir. 2012)\\n(citing Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008)). To determine\\nwhether the parties entered a valid arbitration agreement, “courts generally\\n. . . should apply ordinary state-law principles that govern the formation of\\n 4\\n\\f Case: 18-60749 Document: 00515002949 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\ncontracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In\\nMississippi, “[t]he elements of a contract are (1) two or more contracting\\nparties, (2) consideration, (3) an agreement that is sufficiently definite, (4)\\nparties with legal capacity to make a contract, (5) mutual assent, and (6) no\\nlegal prohibition precluding contract formation.” GGNSC Batesville, LLC v.\\nJohnson, 109 So. 3d 562, 565 (Miss. 2013) (quoting Adams Cmty. Care Ctr.,\\nLLC v. Reed, 37 So. 3d 1155, 1158 (Miss. 2010)). Under Mississippi law, both\\nof Bowles’s challenges—meeting of the minds and procedural\\nunconscionability—go to contract formation. See West v. West, 891 So. 2d 203,\\n213 (Miss. 2004) (“Procedural unconscionability goes to the formation of the\\ncontract.” (citing East Ford, Inc. v. Taylor, 826 So. 2d 709, 714 (Miss. 2002)));\\nGGNSC Batesville, 109 So. 3d at 565 (mutual assent necessary element of\\ncontract formation).\\n Furthermore, courts must follow a two-step analysis to determine\\nwhether a claim must be arbitrated. “At step one, ‘the court must determine\\nwhether the parties entered into any arbitration agreement at all.’” Lloyd’s\\nSyndicate 457 v. FloaTEC, L.L.C., 921 F.3d 508, 514 (5th Cir. 2019) (quoting\\nIQ Prod. Co. v. WD-40 Co., 871 F.3d 344, 348 (5th Cir. 2017)). At step two, “we\\nengage in a ‘limited’ inquiry: ‘[W]hether the [parties’] agreement contains a\\nvalid delegation clause.’” Id. (alteration in original) (quoting IQ Prod., 871 F.3d\\nat 348). If the agreement contains such a delegation clause, “a motion to\\ncompel arbitration should be granted in almost all cases.” Id. (quoting IQ\\nProd., 871 F.3d at 348).\\n Our concern in this appeal relates only to step one. Courts may not refer\\nthe step one inquiry—whether an arbitration agreement was formed in the\\nfirst place—to the arbitrator. See Lloyd’s Syndicate 457, 921 F.3d at 514 (“The\\nfirst step is a question of contract formation only—did the parties form a valid\\nagreement to arbitrate some set of claims. This inquiry is for the court.”\\n 5\\n\\f Case: 18-60749 Document: 00515002949 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\n(internal quotation marks and citation omitted)); Will-Drill Res., Inc. v.\\nSamson Res. Co., 352 F.3d 211, 218 (5th Cir. 2003) (“Where the very existence\\nof any [arbitration] agreement is disputed, it is for the courts to decide at the\\noutset whether an agreement was reached.”); see also Begole, 761 F. App’x at\\n251 (“[W]here a party challenges the validity of the agreement to arbitrate in\\nparticular, the district court must weigh in on whether the specific decision to\\nagree to arbitrate was unconscionable.”).\\n III.\\n Bowles argues that no valid arbitration agreement was ever formed for\\ntwo reasons. First, there was no meeting of the minds and therefore no mutual\\nassent necessary to contract formation. The district court, finding that this\\nchallenge goes to the formation of the Arbitration Agreement, considered and\\ndismissed the claim based on Mississippi law. Bowles challenges the district\\ncourt’s application of Mississippi law to the merits of her meeting of the minds\\nobjection, arguing, as she did below, that she never had the intent to sign an\\narbitration agreement and was unaware of the nature of the document she\\nsigned.\\n Second, Bowles argues that the Arbitration Agreement was not validly\\nformed because the circumstances surrounding its formation rendered it\\nprocedurally unconscionable. The district court found that Bowles’s procedural\\nunconscionability challenge went to the enforceability rather than the\\nformation of the Arbitration Agreement and therefore referred it to the\\narbitrator for decision, in accordance with the Arbitration Agreement’s\\ndelegation clause. Bowles challenges that decision on the grounds that\\nprocedural unconscionability goes to contract formation and must be decided\\nby the district court, not the arbitrator. We address each of Bowles’s\\narguments as follows.\\n\\n\\n 6\\n\\f Case: 18-60749 Document: 00515002949 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\n IV.\\n A.\\n Bowles first argues that there was no meeting of the minds because she\\ndid not intend to agree to arbitrate employment-related disputes. The district\\ncourt correctly found that this objection is a challenge to contract formation\\nunder Mississippi law and examined the merits of Bowles’s meeting of the\\nminds argument. We can find no error in the district court’s ruling on the\\nmerits of Bowles’s meeting of the minds objection. The court correctly found\\nthat the electronic communications transmitting the Arbitration Agreement\\nclearly identified an arbitration agreement as the subject of the\\ncommunications. Furthermore, Bowles was given the opportunity to read the\\nAgreement and certified that she had “carefully read the Employment Dispute\\nResolution Program/Agreement within and that I understand and agree to its\\nterms.” Bowles cannot deny that she thus agreed to the Arbitration\\nAgreement. Instead, she argues that she thought she was “simply\\nacknowledging receipt of another policy or directive” and did not understand\\nshe was agreeing to arbitrate her employment disputes. The district court\\ncorrectly held that such a unilateral lack of diligence does not preclude contract\\nformation under Mississippi law. See Hicks v. Bridges, 580 So. 2d 743, 746\\n(Miss. 1991) (“A person cannot avoid a signed, written contract on the grounds\\nthat he did not read it . . . . ‘To permit a party when sued on a written contract\\nto admit that he signed it but to deny that it expresses the agreement or to\\nallow him to admit that he signed it but did not read it or know its stipulations\\nwould absolutely destroy the value of all contracts.’” (quoting Busching v.\\nGriffin, 542 So. 2d 860, 865 (Miss. 1989))). The district court thus made no\\nerror in concluding that there was the meeting of the minds between Bowles\\n\\n\\n\\n\\n 7\\n\\f Case: 18-60749 Document: 00515002949 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nand OneMain necessary for contract formation, and this portion of the district\\ncourt’s ruling is affirmed. 4\\n B.\\n We turn now to the district court’s holding that Bowles’s procedural\\nunconscionability objection must be decided by the arbitrator. Although the\\ndistrict court considered Bowles’s meeting of the minds objection on the merits,\\nit held that her procedural unconscionability argument was for the arbitrator\\nto resolve. Accordingly, the dispositive question here is whether, under\\nMississippi law, Bowles’s procedural unconscionability objection is a challenge\\nto contract enforcement, as the district court reasoned, or contract formation.\\n We think the district court plainly erred. In Mississippi, it is pellucid\\nthat “[p]rocedural unconscionability goes to the formation of the contract.”\\nWest, 891 So. 2d at 213 (citing East Ford, Inc., 826 So. 2d at 714). Because\\nBowles’s procedural unconscionability objection challenges the formation of the\\nArbitration Agreement itself, the district court had the duty to resolve this\\nchallenge. 5 See Lloyd’s Syndicate 457, 921 F.3d at 514; Banc One Acceptance\\nCorp. v. Hill, 367 F.3d 426, 431 (5th Cir. 2004) (district court applying\\nMississippi law had the “authority and the responsibility to adjudicate whether\\nthe arbitration agreement . . . was procedurally unconscionable”). The district\\ncourt thus erred in dismissing the case without adjudicating Bowles’s\\nprocedural unconscionability challenge to the Arbitration Agreement’s\\n\\n\\n Furthermore, we hold that the district court had sufficient evidence to dismiss this\\n 4\\n\\nargument without an evidentiary hearing.\\n 5Although “generally, allegations of unconscionability[] related to the formation of the\\ncontract as a whole, are for the arbitrator . . . where a party challenges the validity of the\\nagreement to arbitrate in particular, the district court must weigh in on whether the specific\\ndecision to agree to arbitrate was unconscionable.” Begole, 761 F. App’x at 251 (citing Prima\\nPaint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–04 (1967)). Here, Bowles’s\\nprocedural unconscionability “line of attack, aim[s] at the arbitration [agreement] alone.”\\nBanc One Acceptance Corp., 367 F.3d at 431.\\n\\n 8\\n\\f Case: 18-60749 Document: 00515002949 Page: 9 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nformation. We therefore remand for the district court to decide the merits of\\nBowles’s procedural unconscionability objection. We have nothing to say about\\nthe merits of that question.\\n V.\\n Accordingly, the district court’s order compelling arbitration and\\ndismissing the complaint is REVERSED and VACATED and the case is\\nREMANDED for the district court to decide the merits of Bowles’s procedural\\nunconscionability objection and in that light to reconsider and rule on\\nOneMain’s motion to compel arbitration.\\n REVERSED, VACATED, and REMANDED.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408605/\", \"author_raw\": \"E. GRADY JOLLY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"COSTA\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631352/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Cathy Bowles v. OneMain Financial Group, LLC\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-60749 Document: 00515002949 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 18-60749\n Fifth Circuit\n\n FILED\n Summary Calendar June 19, 2019\n Lyle W. Cayce\nCATHY J. BOWLES, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nONEMAIN FINANCIAL GROUP, L.L.C.,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore JOLLY, COSTA, and HO, Circuit Judges.\nE. GRADY JOLLY, Circuit Judge:\n Cathy Bowles appeals the district court’s order compelling the\narbitration of her federal age discrimination suit against OneMain Financial.\nBowles objected to arbitration on the grounds that a valid arbitration\nagreement was never formed between her and OneMain for two reasons: first,\nthere was no meeting of the minds and, second, the circumstances surrounding\nthe arbitration agreement’s formation render it procedurally unconscionable.\nAlthough the district court correctly rejected Bowles’s meeting of the minds\n\f Case: 18-60749 Document: 00515002949 Page: 2 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\nargument, it erroneously referred her procedural unconscionability 1 challenge\nto the arbitrator. Because procedural unconscionability goes to contract\nformation under Mississippi law, the district court should have ruled on this\nobjection. Accordingly, we REVERSE and VACATE the district court’s order\nand REMAND to the district court to decide the merits of Bowles’s procedural\nunconscionability claim.\n I.\n Bowles had worked for OneMain Financial Group and its predecessors\nsince 1998. Over that period she had agreed several times through\nemployment contracts and acknowledgments of employee handbooks to refer\nall employment disputes to arbitration. In 2016, Bowles was again required to\nreview and acknowledge OneMain’s Employee Dispute Resolution\nProgram/Agreement (“Arbitration Agreement”). This Arbitration Agreement\nprovides that any employment-related dispute will be referred to arbitration\nin accordance with the rules and procedures of the American Arbitration\nAssociation. In addition, the Arbitration Agreement contained a delegation\n\n\n\n 1 We recently set out the difference between procedural and substantive\nunconscionability under Mississippi law:\n Under substantive unconscionability, we look within the four corners of an\n agreement in order to discover any abuses relating to the specific terms which\n violate the expectations of, or cause gross disparity between, the contracting\n parties. Procedural unconscionability may be proved by showing a lack of\n knowledge, lack of voluntariness, inconspicuous print, the use of complex\n legalistic language, disparity in sophistication or bargaining power of the\n parties and/or a lack of opportunity to study the contract and inquire about the\n contract terms.\nBegole v. N. Miss. Med. Ctr., Inc., 761 F. App’x 248, 251 (5th Cir. 2019) (internal citations and\nquotation marks omitted). Neither party disputes that Bowles’s objection is to procedural\nrather than substantive unconscionability. Furthermore, by using the term “procedural\nunconscionability” and grounding her objection in disparate bargaining power, her lack of a\nmeaningful opportunity to bargain, and fraud in procuring her assent, we are convinced that\nBowles’s objection is indeed to procedural unconscionability.\n\n 2\n\f Case: 18-60749 Document: 00515002949 Page: 3 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\nclause, which delegated to the arbitrator as follows: “any legal dispute . . .\narising out of, relating to, or concerning the validity, enforceability or breach\nof this Agreement, shall be resolved by final and binding arbitration.” On\nNovember 15, 2016, Bowles viewed the Arbitration Agreement 2 and\nelectronically signed a certificate that reads: “I hereby certify that I have\ncarefully read the Employment Dispute Resolution Program/Agreement within\nand that I understand and agree to its terms.”\n In October 2017, OneMain terminated Bowles for allegedly\ninappropriate interactions with employees under her supervision. Bowles filed\nan unsuccessful administrative complaint with the EEOC. She next filed suit\nin federal court alleging that her termination violated the Age Discrimination\nin Employment Act and Title VII of the Civil Rights Act of 1964. In response,\nOneMain moved the district court, under the Federal Arbitration Act, 3 to\ncompel Bowles to arbitrate her claims pursuant to the 2016 Arbitration\nAgreement.\n Bowles objected to OneMain’s motion to compel by challenging the\nformation of the Arbitration Agreement itself on two grounds. First, she\nargued that there was no “meeting of the minds” because she did not\nunderstand that she was agreeing to a binding arbitration agreement and\n\n\n 2 Before signing, the software required Bowles to open the Arbitration Agreement.\n 3 The Federal Arbitration Act provides that:\n A written provision in any maritime transaction or a contract\n evidencing a transaction involving commerce to settle by arbitration a\n controversy thereafter arising out of such contract or transaction, or the\n refusal to perform the whole or any part thereof, or an agreement in\n writing to submit to arbitration an existing controversy arising out of\n such a contract, transaction, or refusal, shall be valid, irrevocable, and\n enforceable, save upon such grounds as exist at law or in equity for the\n revocation of any contract.\n 9 U.S.C. § 2.\n\n 3\n\f Case: 18-60749 Document: 00515002949 Page: 4 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\ntherefore there was not the mutual assent necessary for contract formation\nunder Mississippi law. Second, she argued that the Agreement was\nprocedurally unconscionable because her assent was obtained through\nmisrepresentation, she never had a meaningful opportunity to bargain, and\nthere was a gross disparity in the parties’ bargaining power.\n The district court granted OneMain’s motion to compel and dismissed\nthe case with prejudice. It first found that there was the meeting of the minds\nnecessary for contract formation in Mississippi. Next, instead of considering\nBowles’s procedural unconscionability claim on the merits, the district court\nfound that “[c]laims of unconscionability do not affect whether an arbitration\nagreement has been entered but, instead, such claims permit a court to\ninvalidate an otherwise existing agreement.” Thus, reasoning that Bowles’s\nprocedural unconscionability objection went to the enforceability of the\nArbitration Agreement and not its formation, the court held that this argument\nmust be decided by the arbitrator under the Arbitration Agreement’s\ndelegation clause. Accordingly, the district court granted OneMain’s motion to\ncompel arbitration and dismissed the case with prejudice.\n Bowles has now appealed arguing that the district court incorrectly\nupheld the validity of the Arbitration Agreement on the erroneous ground that\nthere was a meeting of the minds, and further erred by referring her procedural\nunconscionability claim to the arbitrator when, under Mississippi law, such\nobjections are for the court to decide.\n II.\n “This court reviews the grant or denial of a motion to compel arbitration\nde novo.” Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir. 2012)\n(citing Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008)). To determine\nwhether the parties entered a valid arbitration agreement, “courts generally\n. . . should apply ordinary state-law principles that govern the formation of\n 4\n\f Case: 18-60749 Document: 00515002949 Page: 5 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\ncontracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In\nMississippi, “[t]he elements of a contract are (1) two or more contracting\nparties, (2) consideration, (3) an agreement that is sufficiently definite, (4)\nparties with legal capacity to make a contract, (5) mutual assent, and (6) no\nlegal prohibition precluding contract formation.” GGNSC Batesville, LLC v.\nJohnson, 109 So. 3d 562, 565 (Miss. 2013) (quoting Adams Cmty. Care Ctr.,\nLLC v. Reed, 37 So. 3d 1155, 1158 (Miss. 2010)). Under Mississippi law, both\nof Bowles’s challenges—meeting of the minds and procedural\nunconscionability—go to contract formation. See West v. West, 891 So. 2d 203,\n213 (Miss. 2004) (“Procedural unconscionability goes to the formation of the\ncontract.” (citing East Ford, Inc. v. Taylor, 826 So. 2d 709, 714 (Miss. 2002)));\nGGNSC Batesville, 109 So. 3d at 565 (mutual assent necessary element of\ncontract formation).\n Furthermore, courts must follow a two-step analysis to determine\nwhether a claim must be arbitrated. “At step one, ‘the court must determine\nwhether the parties entered into any arbitration agreement at all.’” Lloyd’s\nSyndicate 457 v. FloaTEC, L.L.C., 921 F.3d 508, 514 (5th Cir. 2019) (quoting\nIQ Prod. Co. v. WD-40 Co., 871 F.3d 344, 348 (5th Cir. 2017)). At step two, “we\nengage in a ‘limited’ inquiry: ‘[W]hether the [parties’] agreement contains a\nvalid delegation clause.’” Id. (alteration in original) (quoting IQ Prod., 871 F.3d\nat 348). If the agreement contains such a delegation clause, “a motion to\ncompel arbitration should be granted in almost all cases.” Id. (quoting IQ\nProd., 871 F.3d at 348).\n Our concern in this appeal relates only to step one. Courts may not refer\nthe step one inquiry—whether an arbitration agreement was formed in the\nfirst place—to the arbitrator. See Lloyd’s Syndicate 457, 921 F.3d at 514 (“The\nfirst step is a question of contract formation only—did the parties form a valid\nagreement to arbitrate some set of claims. This inquiry is for the court.”\n 5\n\f Case: 18-60749 Document: 00515002949 Page: 6 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\n(internal quotation marks and citation omitted)); Will-Drill Res., Inc. v.\nSamson Res. Co., 352 F.3d 211, 218 (5th Cir. 2003) (“Where the very existence\nof any [arbitration] agreement is disputed, it is for the courts to decide at the\noutset whether an agreement was reached.”); see also Begole, 761 F. App’x at\n251 (“[W]here a party challenges the validity of the agreement to arbitrate in\nparticular, the district court must weigh in on whether the specific decision to\nagree to arbitrate was unconscionable.”).\n III.\n Bowles argues that no valid arbitration agreement was ever formed for\ntwo reasons. First, there was no meeting of the minds and therefore no mutual\nassent necessary to contract formation. The district court, finding that this\nchallenge goes to the formation of the Arbitration Agreement, considered and\ndismissed the claim based on Mississippi law. Bowles challenges the district\ncourt’s application of Mississippi law to the merits of her meeting of the minds\nobjection, arguing, as she did below, that she never had the intent to sign an\narbitration agreement and was unaware of the nature of the document she\nsigned.\n Second, Bowles argues that the Arbitration Agreement was not validly\nformed because the circumstances surrounding its formation rendered it\nprocedurally unconscionable. The district court found that Bowles’s procedural\nunconscionability challenge went to the enforceability rather than the\nformation of the Arbitration Agreement and therefore referred it to the\narbitrator for decision, in accordance with the Arbitration Agreement’s\ndelegation clause. Bowles challenges that decision on the grounds that\nprocedural unconscionability goes to contract formation and must be decided\nby the district court, not the arbitrator. We address each of Bowles’s\narguments as follows.\n\n\n 6\n\f Case: 18-60749 Document: 00515002949 Page: 7 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\n IV.\n A.\n Bowles first argues that there was no meeting of the minds because she\ndid not intend to agree to arbitrate employment-related disputes. The district\ncourt correctly found that this objection is a challenge to contract formation\nunder Mississippi law and examined the merits of Bowles’s meeting of the\nminds argument. We can find no error in the district court’s ruling on the\nmerits of Bowles’s meeting of the minds objection. The court correctly found\nthat the electronic communications transmitting the Arbitration Agreement\nclearly identified an arbitration agreement as the subject of the\ncommunications. Furthermore, Bowles was given the opportunity to read the\nAgreement and certified that she had “carefully read the Employment Dispute\nResolution Program/Agreement within and that I understand and agree to its\nterms.” Bowles cannot deny that she thus agreed to the Arbitration\nAgreement. Instead, she argues that she thought she was “simply\nacknowledging receipt of another policy or directive” and did not understand\nshe was agreeing to arbitrate her employment disputes. The district court\ncorrectly held that such a unilateral lack of diligence does not preclude contract\nformation under Mississippi law. See Hicks v. Bridges, 580 So. 2d 743, 746\n(Miss. 1991) (“A person cannot avoid a signed, written contract on the grounds\nthat he did not read it . . . . ‘To permit a party when sued on a written contract\nto admit that he signed it but to deny that it expresses the agreement or to\nallow him to admit that he signed it but did not read it or know its stipulations\nwould absolutely destroy the value of all contracts.’” (quoting Busching v.\nGriffin, 542 So. 2d 860, 865 (Miss. 1989))). The district court thus made no\nerror in concluding that there was the meeting of the minds between Bowles\n\n\n\n\n 7\n\f Case: 18-60749 Document: 00515002949 Page: 8 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\nand OneMain necessary for contract formation, and this portion of the district\ncourt’s ruling is affirmed. 4\n B.\n We turn now to the district court’s holding that Bowles’s procedural\nunconscionability objection must be decided by the arbitrator. Although the\ndistrict court considered Bowles’s meeting of the minds objection on the merits,\nit held that her procedural unconscionability argument was for the arbitrator\nto resolve. Accordingly, the dispositive question here is whether, under\nMississippi law, Bowles’s procedural unconscionability objection is a challenge\nto contract enforcement, as the district court reasoned, or contract formation.\n We think the district court plainly erred. In Mississippi, it is pellucid\nthat “[p]rocedural unconscionability goes to the formation of the contract.”\nWest, 891 So. 2d at 213 (citing East Ford, Inc., 826 So. 2d at 714). Because\nBowles’s procedural unconscionability objection challenges the formation of the\nArbitration Agreement itself, the district court had the duty to resolve this\nchallenge. 5 See Lloyd’s Syndicate 457, 921 F.3d at 514; Banc One Acceptance\nCorp. v. Hill, 367 F.3d 426, 431 (5th Cir. 2004) (district court applying\nMississippi law had the “authority and the responsibility to adjudicate whether\nthe arbitration agreement . . . was procedurally unconscionable”). The district\ncourt thus erred in dismissing the case without adjudicating Bowles’s\nprocedural unconscionability challenge to the Arbitration Agreement’s\n\n\n Furthermore, we hold that the district court had sufficient evidence to dismiss this\n 4\n\nargument without an evidentiary hearing.\n 5Although “generally, allegations of unconscionability[] related to the formation of the\ncontract as a whole, are for the arbitrator . . . where a party challenges the validity of the\nagreement to arbitrate in particular, the district court must weigh in on whether the specific\ndecision to agree to arbitrate was unconscionable.” Begole, 761 F. App’x at 251 (citing Prima\nPaint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–04 (1967)). Here, Bowles’s\nprocedural unconscionability “line of attack, aim[s] at the arbitration [agreement] alone.”\nBanc One Acceptance Corp., 367 F.3d at 431.\n\n 8\n\f Case: 18-60749 Document: 00515002949 Page: 9 Date Filed: 06/19/2019\n\n\n\n No. 18-60749\nformation. We therefore remand for the district court to decide the merits of\nBowles’s procedural unconscionability objection. We have nothing to say about\nthe merits of that question.\n V.\n Accordingly, the district court’s order compelling arbitration and\ndismissing the complaint is REVERSED and VACATED and the case is\nREMANDED for the district court to decide the merits of Bowles’s procedural\nunconscionability objection and in that light to reconsider and rule on\nOneMain’s motion to compel arbitration.\n REVERSED, VACATED, and REMANDED.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Cathy Bowles v. OneMain Financial Group, LLC\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-60749 Document: 00515002949 Page: 1 Date Filed: 06/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n United States Court of Appeals\\n\\n No. 18-60749\\n Fifth Circuit\\n\\n FILED\\n Summary Calendar June 19, 2019\\n Lyle W. Cayce\\nCATHY J. BOWLES, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nONEMAIN FINANCIAL GROUP, L.L.C.,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore JOLLY, COSTA, and HO, Circuit Judges.\\nE. GRADY JOLLY, Circuit Judge:\\n Cathy Bowles appeals the district court’s order compelling the\\narbitration of her federal age discrimination suit against OneMain Financial.\\nBowles objected to arbitration on the grounds that a valid arbitration\\nagreement was never formed between her and OneMain for two reasons: first,\\nthere was no meeting of the minds and, second, the circumstances surrounding\\nthe arbitration agreement’s formation render it procedurally unconscionable.\\nAlthough the district court correctly rejected Bowles’s meeting of the minds\\n\\f Case: 18-60749 Document: 00515002949 Page: 2 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nargument, it erroneously referred her procedural unconscionability 1 challenge\\nto the arbitrator. Because procedural unconscionability goes to contract\\nformation under Mississippi law, the district court should have ruled on this\\nobjection. Accordingly, we REVERSE and VACATE the district court’s order\\nand REMAND to the district court to decide the merits of Bowles’s procedural\\nunconscionability claim.\\n I.\\n Bowles had worked for OneMain Financial Group and its predecessors\\nsince 1998. Over that period she had agreed several times through\\nemployment contracts and acknowledgments of employee handbooks to refer\\nall employment disputes to arbitration. In 2016, Bowles was again required to\\nreview and acknowledge OneMain’s Employee Dispute Resolution\\nProgram/Agreement (“Arbitration Agreement”). This Arbitration Agreement\\nprovides that any employment-related dispute will be referred to arbitration\\nin accordance with the rules and procedures of the American Arbitration\\nAssociation. In addition, the Arbitration Agreement contained a delegation\\n\\n\\n\\n 1 We recently set out the difference between procedural and substantive\\nunconscionability under Mississippi law:\\n Under substantive unconscionability, we look within the four corners of an\\n agreement in order to discover any abuses relating to the specific terms which\\n violate the expectations of, or cause gross disparity between, the contracting\\n parties. Procedural unconscionability may be proved by showing a lack of\\n knowledge, lack of voluntariness, inconspicuous print, the use of complex\\n legalistic language, disparity in sophistication or bargaining power of the\\n parties and/or a lack of opportunity to study the contract and inquire about the\\n contract terms.\\nBegole v. N. Miss. Med. Ctr., Inc., 761 F. App’x 248, 251 (5th Cir. 2019) (internal citations and\\nquotation marks omitted). Neither party disputes that Bowles’s objection is to procedural\\nrather than substantive unconscionability. Furthermore, by using the term “procedural\\nunconscionability” and grounding her objection in disparate bargaining power, her lack of a\\nmeaningful opportunity to bargain, and fraud in procuring her assent, we are convinced that\\nBowles’s objection is indeed to procedural unconscionability.\\n\\n 2\\n\\f Case: 18-60749 Document: 00515002949 Page: 3 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nclause, which delegated to the arbitrator as follows: “any legal dispute . . .\\narising out of, relating to, or concerning the validity, enforceability or breach\\nof this Agreement, shall be resolved by final and binding arbitration.” On\\nNovember 15, 2016, Bowles viewed the Arbitration Agreement 2 and\\nelectronically signed a certificate that reads: “I hereby certify that I have\\ncarefully read the Employment Dispute Resolution Program/Agreement within\\nand that I understand and agree to its terms.”\\n In October 2017, OneMain terminated Bowles for allegedly\\ninappropriate interactions with employees under her supervision. Bowles filed\\nan unsuccessful administrative complaint with the EEOC. She next filed suit\\nin federal court alleging that her termination violated the Age Discrimination\\nin Employment Act and Title VII of the Civil Rights Act of 1964. In response,\\nOneMain moved the district court, under the Federal Arbitration Act, 3 to\\ncompel Bowles to arbitrate her claims pursuant to the 2016 Arbitration\\nAgreement.\\n Bowles objected to OneMain’s motion to compel by challenging the\\nformation of the Arbitration Agreement itself on two grounds. First, she\\nargued that there was no “meeting of the minds” because she did not\\nunderstand that she was agreeing to a binding arbitration agreement and\\n\\n\\n 2 Before signing, the software required Bowles to open the Arbitration Agreement.\\n 3 The Federal Arbitration Act provides that:\\n A written provision in any maritime transaction or a contract\\n evidencing a transaction involving commerce to settle by arbitration a\\n controversy thereafter arising out of such contract or transaction, or the\\n refusal to perform the whole or any part thereof, or an agreement in\\n writing to submit to arbitration an existing controversy arising out of\\n such a contract, transaction, or refusal, shall be valid, irrevocable, and\\n enforceable, save upon such grounds as exist at law or in equity for the\\n revocation of any contract.\\n 9 U.S.C. § 2.\\n\\n 3\\n\\f Case: 18-60749 Document: 00515002949 Page: 4 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\ntherefore there was not the mutual assent necessary for contract formation\\nunder Mississippi law. Second, she argued that the Agreement was\\nprocedurally unconscionable because her assent was obtained through\\nmisrepresentation, she never had a meaningful opportunity to bargain, and\\nthere was a gross disparity in the parties’ bargaining power.\\n The district court granted OneMain’s motion to compel and dismissed\\nthe case with prejudice. It first found that there was the meeting of the minds\\nnecessary for contract formation in Mississippi. Next, instead of considering\\nBowles’s procedural unconscionability claim on the merits, the district court\\nfound that “[c]laims of unconscionability do not affect whether an arbitration\\nagreement has been entered but, instead, such claims permit a court to\\ninvalidate an otherwise existing agreement.” Thus, reasoning that Bowles’s\\nprocedural unconscionability objection went to the enforceability of the\\nArbitration Agreement and not its formation, the court held that this argument\\nmust be decided by the arbitrator under the Arbitration Agreement’s\\ndelegation clause. Accordingly, the district court granted OneMain’s motion to\\ncompel arbitration and dismissed the case with prejudice.\\n Bowles has now appealed arguing that the district court incorrectly\\nupheld the validity of the Arbitration Agreement on the erroneous ground that\\nthere was a meeting of the minds, and further erred by referring her procedural\\nunconscionability claim to the arbitrator when, under Mississippi law, such\\nobjections are for the court to decide.\\n II.\\n “This court reviews the grant or denial of a motion to compel arbitration\\nde novo.” Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir. 2012)\\n(citing Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008)). To determine\\nwhether the parties entered a valid arbitration agreement, “courts generally\\n. . . should apply ordinary state-law principles that govern the formation of\\n 4\\n\\f Case: 18-60749 Document: 00515002949 Page: 5 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\ncontracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In\\nMississippi, “[t]he elements of a contract are (1) two or more contracting\\nparties, (2) consideration, (3) an agreement that is sufficiently definite, (4)\\nparties with legal capacity to make a contract, (5) mutual assent, and (6) no\\nlegal prohibition precluding contract formation.” GGNSC Batesville, LLC v.\\nJohnson, 109 So. 3d 562, 565 (Miss. 2013) (quoting Adams Cmty. Care Ctr.,\\nLLC v. Reed, 37 So. 3d 1155, 1158 (Miss. 2010)). Under Mississippi law, both\\nof Bowles’s challenges—meeting of the minds and procedural\\nunconscionability—go to contract formation. See West v. West, 891 So. 2d 203,\\n213 (Miss. 2004) (“Procedural unconscionability goes to the formation of the\\ncontract.” (citing East Ford, Inc. v. Taylor, 826 So. 2d 709, 714 (Miss. 2002)));\\nGGNSC Batesville, 109 So. 3d at 565 (mutual assent necessary element of\\ncontract formation).\\n Furthermore, courts must follow a two-step analysis to determine\\nwhether a claim must be arbitrated. “At step one, ‘the court must determine\\nwhether the parties entered into any arbitration agreement at all.’” Lloyd’s\\nSyndicate 457 v. FloaTEC, L.L.C., 921 F.3d 508, 514 (5th Cir. 2019) (quoting\\nIQ Prod. Co. v. WD-40 Co., 871 F.3d 344, 348 (5th Cir. 2017)). At step two, “we\\nengage in a ‘limited’ inquiry: ‘[W]hether the [parties’] agreement contains a\\nvalid delegation clause.’” Id. (alteration in original) (quoting IQ Prod., 871 F.3d\\nat 348). If the agreement contains such a delegation clause, “a motion to\\ncompel arbitration should be granted in almost all cases.” Id. (quoting IQ\\nProd., 871 F.3d at 348).\\n Our concern in this appeal relates only to step one. Courts may not refer\\nthe step one inquiry—whether an arbitration agreement was formed in the\\nfirst place—to the arbitrator. See Lloyd’s Syndicate 457, 921 F.3d at 514 (“The\\nfirst step is a question of contract formation only—did the parties form a valid\\nagreement to arbitrate some set of claims. This inquiry is for the court.”\\n 5\\n\\f Case: 18-60749 Document: 00515002949 Page: 6 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\n(internal quotation marks and citation omitted)); Will-Drill Res., Inc. v.\\nSamson Res. Co., 352 F.3d 211, 218 (5th Cir. 2003) (“Where the very existence\\nof any [arbitration] agreement is disputed, it is for the courts to decide at the\\noutset whether an agreement was reached.”); see also Begole, 761 F. App’x at\\n251 (“[W]here a party challenges the validity of the agreement to arbitrate in\\nparticular, the district court must weigh in on whether the specific decision to\\nagree to arbitrate was unconscionable.”).\\n III.\\n Bowles argues that no valid arbitration agreement was ever formed for\\ntwo reasons. First, there was no meeting of the minds and therefore no mutual\\nassent necessary to contract formation. The district court, finding that this\\nchallenge goes to the formation of the Arbitration Agreement, considered and\\ndismissed the claim based on Mississippi law. Bowles challenges the district\\ncourt’s application of Mississippi law to the merits of her meeting of the minds\\nobjection, arguing, as she did below, that she never had the intent to sign an\\narbitration agreement and was unaware of the nature of the document she\\nsigned.\\n Second, Bowles argues that the Arbitration Agreement was not validly\\nformed because the circumstances surrounding its formation rendered it\\nprocedurally unconscionable. The district court found that Bowles’s procedural\\nunconscionability challenge went to the enforceability rather than the\\nformation of the Arbitration Agreement and therefore referred it to the\\narbitrator for decision, in accordance with the Arbitration Agreement’s\\ndelegation clause. Bowles challenges that decision on the grounds that\\nprocedural unconscionability goes to contract formation and must be decided\\nby the district court, not the arbitrator. We address each of Bowles’s\\narguments as follows.\\n\\n\\n 6\\n\\f Case: 18-60749 Document: 00515002949 Page: 7 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\n IV.\\n A.\\n Bowles first argues that there was no meeting of the minds because she\\ndid not intend to agree to arbitrate employment-related disputes. The district\\ncourt correctly found that this objection is a challenge to contract formation\\nunder Mississippi law and examined the merits of Bowles’s meeting of the\\nminds argument. We can find no error in the district court’s ruling on the\\nmerits of Bowles’s meeting of the minds objection. The court correctly found\\nthat the electronic communications transmitting the Arbitration Agreement\\nclearly identified an arbitration agreement as the subject of the\\ncommunications. Furthermore, Bowles was given the opportunity to read the\\nAgreement and certified that she had “carefully read the Employment Dispute\\nResolution Program/Agreement within and that I understand and agree to its\\nterms.” Bowles cannot deny that she thus agreed to the Arbitration\\nAgreement. Instead, she argues that she thought she was “simply\\nacknowledging receipt of another policy or directive” and did not understand\\nshe was agreeing to arbitrate her employment disputes. The district court\\ncorrectly held that such a unilateral lack of diligence does not preclude contract\\nformation under Mississippi law. See Hicks v. Bridges, 580 So. 2d 743, 746\\n(Miss. 1991) (“A person cannot avoid a signed, written contract on the grounds\\nthat he did not read it . . . . ‘To permit a party when sued on a written contract\\nto admit that he signed it but to deny that it expresses the agreement or to\\nallow him to admit that he signed it but did not read it or know its stipulations\\nwould absolutely destroy the value of all contracts.’” (quoting Busching v.\\nGriffin, 542 So. 2d 860, 865 (Miss. 1989))). The district court thus made no\\nerror in concluding that there was the meeting of the minds between Bowles\\n\\n\\n\\n\\n 7\\n\\f Case: 18-60749 Document: 00515002949 Page: 8 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nand OneMain necessary for contract formation, and this portion of the district\\ncourt’s ruling is affirmed. 4\\n B.\\n We turn now to the district court’s holding that Bowles’s procedural\\nunconscionability objection must be decided by the arbitrator. Although the\\ndistrict court considered Bowles’s meeting of the minds objection on the merits,\\nit held that her procedural unconscionability argument was for the arbitrator\\nto resolve. Accordingly, the dispositive question here is whether, under\\nMississippi law, Bowles’s procedural unconscionability objection is a challenge\\nto contract enforcement, as the district court reasoned, or contract formation.\\n We think the district court plainly erred. In Mississippi, it is pellucid\\nthat “[p]rocedural unconscionability goes to the formation of the contract.”\\nWest, 891 So. 2d at 213 (citing East Ford, Inc., 826 So. 2d at 714). Because\\nBowles’s procedural unconscionability objection challenges the formation of the\\nArbitration Agreement itself, the district court had the duty to resolve this\\nchallenge. 5 See Lloyd’s Syndicate 457, 921 F.3d at 514; Banc One Acceptance\\nCorp. v. Hill, 367 F.3d 426, 431 (5th Cir. 2004) (district court applying\\nMississippi law had the “authority and the responsibility to adjudicate whether\\nthe arbitration agreement . . . was procedurally unconscionable”). The district\\ncourt thus erred in dismissing the case without adjudicating Bowles’s\\nprocedural unconscionability challenge to the Arbitration Agreement’s\\n\\n\\n Furthermore, we hold that the district court had sufficient evidence to dismiss this\\n 4\\n\\nargument without an evidentiary hearing.\\n 5Although “generally, allegations of unconscionability[] related to the formation of the\\ncontract as a whole, are for the arbitrator . . . where a party challenges the validity of the\\nagreement to arbitrate in particular, the district court must weigh in on whether the specific\\ndecision to agree to arbitrate was unconscionable.” Begole, 761 F. App’x at 251 (citing Prima\\nPaint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–04 (1967)). Here, Bowles’s\\nprocedural unconscionability “line of attack, aim[s] at the arbitration [agreement] alone.”\\nBanc One Acceptance Corp., 367 F.3d at 431.\\n\\n 8\\n\\f Case: 18-60749 Document: 00515002949 Page: 9 Date Filed: 06/19/2019\\n\\n\\n\\n No. 18-60749\\nformation. We therefore remand for the district court to decide the merits of\\nBowles’s procedural unconscionability objection. We have nothing to say about\\nthe merits of that question.\\n V.\\n Accordingly, the district court’s order compelling arbitration and\\ndismissing the complaint is REVERSED and VACATED and the case is\\nREMANDED for the district court to decide the merits of Bowles’s procedural\\nunconscionability objection and in that light to reconsider and rule on\\nOneMain’s motion to compel arbitration.\\n REVERSED, VACATED, and REMANDED.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2466,"cells":{"id":{"kind":"number","value":8444020,"string":"8,444,020"},"name":{"kind":"string","value":"Cathy J. BOWLES v. ONEMAIN FINANCIAL GROUP, L.L.C."},"name_abbreviation":{"kind":"string","value":"Bowles v. Onemain Fin. Grp., L. L.C."},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"No. 18-60749"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Costa, Jolly\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415456/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"COSTA"},"judge2":{"kind":"string","value":"JOLLY"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444020/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Cathy J. BOWLES v. ONEMAIN FINANCIAL GROUP, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Cathy J. BOWLES v. ONEMAIN FINANCIAL GROUP, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2467,"cells":{"id":{"kind":"number","value":4631974,"string":"4,631,974"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee v. Richard Deshawn JONES, Defendant-Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Richard Jones"},"decision_date":{"kind":"string","value":"2019-06-21"},"docket_number":{"kind":"string","value":"18-10590"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Wiener, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"WIENER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10590 Document: 00515005893 Page: 1 Date Filed: 06/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-10590 June 21, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nRICHARD DESHAWN JONES,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nWIENER, Circuit Judge:\\n Defendant-Appellee Richard Deshawn Jones was arrested in March\\n2017 while in possession of a firearm. The metal serial-number plate had been\\nremoved from the frame of the handgun, but it had a legible serial number on\\nits slide. The number on the slide was used to trace the firearm.\\n I. FACTS AND PROCEEDINGS\\n Jones pleaded guilty to being a Felon in Possession of a Firearm. The\\npresentence report (PSR) calculated Jones’s offense level. It recommended a\\nfour-level enhancement for possession of a firearm with an altered or\\nobliterated serial number. Jones timely objected to the enhancement, but at\\n\\f Case: 18-10590 Document: 00515005893 Page: 2 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\nsentencing, the district court overruled his objection. Jones appeals the\\napplication of that four-level enhancement.\\n II. ANALYSIS\\n We review the district court’s application of the sentencing guidelines de\\nnovo and its factual findings for clear error. 1 Guideline § 2K2.1(b)(4) applies a\\nfour-level enhancement to a defendant’s base offense level “[i]f any firearm . . .\\nhad an altered or obliterated serial number.” 2 In United States v. Perez, we\\naddressed the meaning of “altered or obliterated” and adopted the Ninth\\nCircuit’s holding in United States v. Carter that “a firearm’s serial number is\\n‘altered or obliterated’ when it is materially changed in a way that makes\\naccurate information less accessible.” 3 We held in Perez that an attempt to\\nscratch the serial number off of a firearm made accurate information less\\naccessible, even though the serial number was “actually readable.” 4 In so\\ndoing, we relied on the reasoning in Carter 5 that the purpose of the\\nguideline─to discourage the use of untraceable weaponry─was advanced by\\npunishing the use of guns that were merely more difficult to trace. 6\\n The Ninth Circuit further reasoned in Carter that “nothing in [the\\nguidelines] suggests that the alteration [or obliteration] must make tracing\\nimpossible or extraordinarily difficult.” 7 That court concluded that Guideline §\\n\\n\\n\\n\\n 1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).\\n 2 U.S. Sentencing Guidelines Manual § 2K2.1(b)(4) (U.S. Sentencing Comm’n 2018).\\n 3 585 F.3d at 885 (quoting United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005)).\\n 4 Id. at 883, 885.\\n 5 Id. at 884–85.\\n 6 Carter, 421 F.3d at 914.\\n 7 Id. at 916 (quoting United States v. Adams, 305 F.3d 30, 34 (1st Cir. 2002)).\\n\\n\\n\\n 2\\n\\f Case: 18-10590 Document: 00515005893 Page: 3 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\n2K2.1(b)(4) is properly applied to a defendant who possessed a traceable\\nfirearm with a defaced serial number. 8\\n We have not previously addressed the specific facts of Jones’s case, viz.,\\na metal serial-number plate having been removed from the gun’s frame but the\\nserial number on the slide remaining unaltered. In United States v. Serrano-\\nMercado, the First Circuit held that Guideline § 2K2.1(b)(4) applies when a\\nserial number on the frame of a firearm is obliterated, even if serial numbers\\non other components of the firearm remain unaltered. 9 There, “Serrano’s pistol\\nhad an obliterated serial number on the frame and an unaltered serial number\\non the slide.” 10 The First Circuit noted that the guideline requires “only ‘an\\naltered or obliterated serial number’” 11 and reasoned that\\n [a]pplying an enhancement for firearms that have a single\\n totally obscured serial number may serve as a deterrent to\\n tampering, even when incomplete. And, relatedly, the single-\\n obliteration rule could facilitate tracking each component that\\n bears a serial number, given that various parts of firearms may be\\n severable. 12\\n\\n Serrano-Mercado is directly on point. Jones possessed a handgun (1)\\nfrom which a plate bearing a serial number had been removed from the frame,\\nbut (2) with an unaltered serial number remaining on the slide. We join the\\nFirst, Eighth, and Eleventh Circuits in holding that the applicable guideline\\n\\n\\n\\n\\n 8 Id. at 910, 916; cf. United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (holding\\nthat Guideline § 2K2.1(b)(4) was applied in error because the homemade silencer never had\\na serial number to alter or obliterate).\\n 9 784 F.3d 838, 850 (1st Cir. 2015).\\n 10 Id. at 849.\\n 11 Id. at 850; see also United States v. Thigpen, 848 F.3d 841, 845–46 (8th Cir. 2017);\\n\\nUnited States v. Warren, 820 F.3d 406, 408 (11th Cir. 2016).\\n 12 Serrano-Mercado, 784 F.3d at 850.\\n\\n\\n\\n 3\\n\\f Case: 18-10590 Document: 00515005893 Page: 4 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\n“requires only that one serial number be altered or obliterated, even if others\\nare clearly legible.” 13\\n Jones counters that the guideline is not applicable here because the\\nserial number itself was not altered or obliterated; rather, the firearm was\\naltered by the removal of the serial-number plate. 14 We disagree with this\\nflawed semantic distinction because the efficacy of the serial-number plate is\\nnegated by its removal from the firearm. A serial number removed from its\\nproduct is effectively obliterated because it no longer serves its purpose of\\nidentifying that item. Perez and Carter support the conclusion that the serial\\nnumber in this case was altered because its location was changed in a way that\\nmakes accurate information less accessible.\\n Jones finally argues that removal of a serial number is not an alteration\\nor obliteration because the guideline does not include the word “remove.” In\\nCarter, the Ninth Circuit discussed the meanings of the words “obliterated”\\nand “altered.” 15 That court observed that “‘obliterate’ is defined by Black’s Law\\nDictionary as ‘[t]o remove from existence’” and that “‘altered’ . . . requires a\\nlesser degree of defacement.” 16\\n The Ninth Circuit subsequently held, in United States v. Romero-\\nMartinez, that “‘removed’ falls comfortably within dictionary definitions of\\n‘obliterated.’” 17 The defendant in that case possessed a firearm that “was\\nmissing the serial number on the frame” that had been “cast as a metal plate\\naffixed to the frame.” 18 “Romero-Martinez challenge[d] the inclusion of\\n\\n\\n 13 Thigpen, 848 F.3d at 845–46 (citing Warren, 820 F.3d at 408; Serrano-Mercado, 784\\nF.3d at 850).\\n 14 This argument is based on the grammatical structure of the guideline. Jones argues\\n\\nthat “altered or obliterated” modifies “serial number” not “firearm.”\\n 15 Carter, 421 F.3d at 912–13.\\n 16 Id. at 912.\\n 17 443 F.3d 1185, 1189 (9th Cir. 2006).\\n 18 Id. at 1187.\\n\\n\\n\\n 4\\n\\f Case: 18-10590 Document: 00515005893 Page: 5 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\n‘removed’ within the definition of ‘obliterated.’” 19 The Ninth Circuit rejected\\nthat argument and held that Guideline § 2K2.1(b)(4) applied because “the\\nremoval of the metal plate certainly makes the firearm less traceable.” 20\\n This court in Perez held that “a firearm’s serial number is ‘altered or\\nobliterated’ when it is materially changed in a way that makes accurate\\ninformation less accessible.” 21 Removal of the metal serial-number plate from\\nthe frame of a firearm is a material change in the location of the serial number\\nthat makes accurate information, viz., the serial number identifying that\\nfirearm, less accessible. Removal of the metal serial-number plate thus alters\\nor obliterates the serial number under Guideline § 2K2.1(b)(4).\\nAFFIRMED.\\n\\n\\n\\n\\n 19 Id.\\n 20 Id. at 1191.\\n 21 Perez, 585 F.3d at 885 (quoting Carter, 421 F.3d at 916).\\n\\n\\n\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409227/\", \"author_raw\": \"WIENER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631974/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Richard Deshawn JONES, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10590 Document: 00515005893 Page: 1 Date Filed: 06/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-10590 June 21, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nRICHARD DESHAWN JONES,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nWIENER, Circuit Judge:\n Defendant-Appellee Richard Deshawn Jones was arrested in March\n2017 while in possession of a firearm. The metal serial-number plate had been\nremoved from the frame of the handgun, but it had a legible serial number on\nits slide. The number on the slide was used to trace the firearm.\n I. FACTS AND PROCEEDINGS\n Jones pleaded guilty to being a Felon in Possession of a Firearm. The\npresentence report (PSR) calculated Jones’s offense level. It recommended a\nfour-level enhancement for possession of a firearm with an altered or\nobliterated serial number. Jones timely objected to the enhancement, but at\n\f Case: 18-10590 Document: 00515005893 Page: 2 Date Filed: 06/21/2019\n\n\n No. 18-10590\n\nsentencing, the district court overruled his objection. Jones appeals the\napplication of that four-level enhancement.\n II. ANALYSIS\n We review the district court’s application of the sentencing guidelines de\nnovo and its factual findings for clear error. 1 Guideline § 2K2.1(b)(4) applies a\nfour-level enhancement to a defendant’s base offense level “[i]f any firearm . . .\nhad an altered or obliterated serial number.” 2 In United States v. Perez, we\naddressed the meaning of “altered or obliterated” and adopted the Ninth\nCircuit’s holding in United States v. Carter that “a firearm’s serial number is\n‘altered or obliterated’ when it is materially changed in a way that makes\naccurate information less accessible.” 3 We held in Perez that an attempt to\nscratch the serial number off of a firearm made accurate information less\naccessible, even though the serial number was “actually readable.” 4 In so\ndoing, we relied on the reasoning in Carter 5 that the purpose of the\nguideline─to discourage the use of untraceable weaponry─was advanced by\npunishing the use of guns that were merely more difficult to trace. 6\n The Ninth Circuit further reasoned in Carter that “nothing in [the\nguidelines] suggests that the alteration [or obliteration] must make tracing\nimpossible or extraordinarily difficult.” 7 That court concluded that Guideline §\n\n\n\n\n 1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).\n 2 U.S. Sentencing Guidelines Manual § 2K2.1(b)(4) (U.S. Sentencing Comm’n 2018).\n 3 585 F.3d at 885 (quoting United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005)).\n 4 Id. at 883, 885.\n 5 Id. at 884–85.\n 6 Carter, 421 F.3d at 914.\n 7 Id. at 916 (quoting United States v. Adams, 305 F.3d 30, 34 (1st Cir. 2002)).\n\n\n\n 2\n\f Case: 18-10590 Document: 00515005893 Page: 3 Date Filed: 06/21/2019\n\n\n No. 18-10590\n\n2K2.1(b)(4) is properly applied to a defendant who possessed a traceable\nfirearm with a defaced serial number. 8\n We have not previously addressed the specific facts of Jones’s case, viz.,\na metal serial-number plate having been removed from the gun’s frame but the\nserial number on the slide remaining unaltered. In United States v. Serrano-\nMercado, the First Circuit held that Guideline § 2K2.1(b)(4) applies when a\nserial number on the frame of a firearm is obliterated, even if serial numbers\non other components of the firearm remain unaltered. 9 There, “Serrano’s pistol\nhad an obliterated serial number on the frame and an unaltered serial number\non the slide.” 10 The First Circuit noted that the guideline requires “only ‘an\naltered or obliterated serial number’” 11 and reasoned that\n [a]pplying an enhancement for firearms that have a single\n totally obscured serial number may serve as a deterrent to\n tampering, even when incomplete. And, relatedly, the single-\n obliteration rule could facilitate tracking each component that\n bears a serial number, given that various parts of firearms may be\n severable. 12\n\n Serrano-Mercado is directly on point. Jones possessed a handgun (1)\nfrom which a plate bearing a serial number had been removed from the frame,\nbut (2) with an unaltered serial number remaining on the slide. We join the\nFirst, Eighth, and Eleventh Circuits in holding that the applicable guideline\n\n\n\n\n 8 Id. at 910, 916; cf. United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (holding\nthat Guideline § 2K2.1(b)(4) was applied in error because the homemade silencer never had\na serial number to alter or obliterate).\n 9 784 F.3d 838, 850 (1st Cir. 2015).\n 10 Id. at 849.\n 11 Id. at 850; see also United States v. Thigpen, 848 F.3d 841, 845–46 (8th Cir. 2017);\n\nUnited States v. Warren, 820 F.3d 406, 408 (11th Cir. 2016).\n 12 Serrano-Mercado, 784 F.3d at 850.\n\n\n\n 3\n\f Case: 18-10590 Document: 00515005893 Page: 4 Date Filed: 06/21/2019\n\n\n No. 18-10590\n\n“requires only that one serial number be altered or obliterated, even if others\nare clearly legible.” 13\n Jones counters that the guideline is not applicable here because the\nserial number itself was not altered or obliterated; rather, the firearm was\naltered by the removal of the serial-number plate. 14 We disagree with this\nflawed semantic distinction because the efficacy of the serial-number plate is\nnegated by its removal from the firearm. A serial number removed from its\nproduct is effectively obliterated because it no longer serves its purpose of\nidentifying that item. Perez and Carter support the conclusion that the serial\nnumber in this case was altered because its location was changed in a way that\nmakes accurate information less accessible.\n Jones finally argues that removal of a serial number is not an alteration\nor obliteration because the guideline does not include the word “remove.” In\nCarter, the Ninth Circuit discussed the meanings of the words “obliterated”\nand “altered.” 15 That court observed that “‘obliterate’ is defined by Black’s Law\nDictionary as ‘[t]o remove from existence’” and that “‘altered’ . . . requires a\nlesser degree of defacement.” 16\n The Ninth Circuit subsequently held, in United States v. Romero-\nMartinez, that “‘removed’ falls comfortably within dictionary definitions of\n‘obliterated.’” 17 The defendant in that case possessed a firearm that “was\nmissing the serial number on the frame” that had been “cast as a metal plate\naffixed to the frame.” 18 “Romero-Martinez challenge[d] the inclusion of\n\n\n 13 Thigpen, 848 F.3d at 845–46 (citing Warren, 820 F.3d at 408; Serrano-Mercado, 784\nF.3d at 850).\n 14 This argument is based on the grammatical structure of the guideline. Jones argues\n\nthat “altered or obliterated” modifies “serial number” not “firearm.”\n 15 Carter, 421 F.3d at 912–13.\n 16 Id. at 912.\n 17 443 F.3d 1185, 1189 (9th Cir. 2006).\n 18 Id. at 1187.\n\n\n\n 4\n\f Case: 18-10590 Document: 00515005893 Page: 5 Date Filed: 06/21/2019\n\n\n No. 18-10590\n\n‘removed’ within the definition of ‘obliterated.’” 19 The Ninth Circuit rejected\nthat argument and held that Guideline § 2K2.1(b)(4) applied because “the\nremoval of the metal plate certainly makes the firearm less traceable.” 20\n This court in Perez held that “a firearm’s serial number is ‘altered or\nobliterated’ when it is materially changed in a way that makes accurate\ninformation less accessible.” 21 Removal of the metal serial-number plate from\nthe frame of a firearm is a material change in the location of the serial number\nthat makes accurate information, viz., the serial number identifying that\nfirearm, less accessible. Removal of the metal serial-number plate thus alters\nor obliterates the serial number under Guideline § 2K2.1(b)(4).\nAFFIRMED.\n\n\n\n\n 19 Id.\n 20 Id. at 1191.\n 21 Perez, 585 F.3d at 885 (quoting Carter, 421 F.3d at 916).\n\n\n\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Richard Deshawn JONES, Defendant-Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10590 Document: 00515005893 Page: 1 Date Filed: 06/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-10590 June 21, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nRICHARD DESHAWN JONES,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nWIENER, Circuit Judge:\\n Defendant-Appellee Richard Deshawn Jones was arrested in March\\n2017 while in possession of a firearm. The metal serial-number plate had been\\nremoved from the frame of the handgun, but it had a legible serial number on\\nits slide. The number on the slide was used to trace the firearm.\\n I. FACTS AND PROCEEDINGS\\n Jones pleaded guilty to being a Felon in Possession of a Firearm. The\\npresentence report (PSR) calculated Jones’s offense level. It recommended a\\nfour-level enhancement for possession of a firearm with an altered or\\nobliterated serial number. Jones timely objected to the enhancement, but at\\n\\f Case: 18-10590 Document: 00515005893 Page: 2 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\nsentencing, the district court overruled his objection. Jones appeals the\\napplication of that four-level enhancement.\\n II. ANALYSIS\\n We review the district court’s application of the sentencing guidelines de\\nnovo and its factual findings for clear error. 1 Guideline § 2K2.1(b)(4) applies a\\nfour-level enhancement to a defendant’s base offense level “[i]f any firearm . . .\\nhad an altered or obliterated serial number.” 2 In United States v. Perez, we\\naddressed the meaning of “altered or obliterated” and adopted the Ninth\\nCircuit’s holding in United States v. Carter that “a firearm’s serial number is\\n‘altered or obliterated’ when it is materially changed in a way that makes\\naccurate information less accessible.” 3 We held in Perez that an attempt to\\nscratch the serial number off of a firearm made accurate information less\\naccessible, even though the serial number was “actually readable.” 4 In so\\ndoing, we relied on the reasoning in Carter 5 that the purpose of the\\nguideline─to discourage the use of untraceable weaponry─was advanced by\\npunishing the use of guns that were merely more difficult to trace. 6\\n The Ninth Circuit further reasoned in Carter that “nothing in [the\\nguidelines] suggests that the alteration [or obliteration] must make tracing\\nimpossible or extraordinarily difficult.” 7 That court concluded that Guideline §\\n\\n\\n\\n\\n 1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).\\n 2 U.S. Sentencing Guidelines Manual § 2K2.1(b)(4) (U.S. Sentencing Comm’n 2018).\\n 3 585 F.3d at 885 (quoting United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005)).\\n 4 Id. at 883, 885.\\n 5 Id. at 884–85.\\n 6 Carter, 421 F.3d at 914.\\n 7 Id. at 916 (quoting United States v. Adams, 305 F.3d 30, 34 (1st Cir. 2002)).\\n\\n\\n\\n 2\\n\\f Case: 18-10590 Document: 00515005893 Page: 3 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\n2K2.1(b)(4) is properly applied to a defendant who possessed a traceable\\nfirearm with a defaced serial number. 8\\n We have not previously addressed the specific facts of Jones’s case, viz.,\\na metal serial-number plate having been removed from the gun’s frame but the\\nserial number on the slide remaining unaltered. In United States v. Serrano-\\nMercado, the First Circuit held that Guideline § 2K2.1(b)(4) applies when a\\nserial number on the frame of a firearm is obliterated, even if serial numbers\\non other components of the firearm remain unaltered. 9 There, “Serrano’s pistol\\nhad an obliterated serial number on the frame and an unaltered serial number\\non the slide.” 10 The First Circuit noted that the guideline requires “only ‘an\\naltered or obliterated serial number’” 11 and reasoned that\\n [a]pplying an enhancement for firearms that have a single\\n totally obscured serial number may serve as a deterrent to\\n tampering, even when incomplete. And, relatedly, the single-\\n obliteration rule could facilitate tracking each component that\\n bears a serial number, given that various parts of firearms may be\\n severable. 12\\n\\n Serrano-Mercado is directly on point. Jones possessed a handgun (1)\\nfrom which a plate bearing a serial number had been removed from the frame,\\nbut (2) with an unaltered serial number remaining on the slide. We join the\\nFirst, Eighth, and Eleventh Circuits in holding that the applicable guideline\\n\\n\\n\\n\\n 8 Id. at 910, 916; cf. United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (holding\\nthat Guideline § 2K2.1(b)(4) was applied in error because the homemade silencer never had\\na serial number to alter or obliterate).\\n 9 784 F.3d 838, 850 (1st Cir. 2015).\\n 10 Id. at 849.\\n 11 Id. at 850; see also United States v. Thigpen, 848 F.3d 841, 845–46 (8th Cir. 2017);\\n\\nUnited States v. Warren, 820 F.3d 406, 408 (11th Cir. 2016).\\n 12 Serrano-Mercado, 784 F.3d at 850.\\n\\n\\n\\n 3\\n\\f Case: 18-10590 Document: 00515005893 Page: 4 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\n“requires only that one serial number be altered or obliterated, even if others\\nare clearly legible.” 13\\n Jones counters that the guideline is not applicable here because the\\nserial number itself was not altered or obliterated; rather, the firearm was\\naltered by the removal of the serial-number plate. 14 We disagree with this\\nflawed semantic distinction because the efficacy of the serial-number plate is\\nnegated by its removal from the firearm. A serial number removed from its\\nproduct is effectively obliterated because it no longer serves its purpose of\\nidentifying that item. Perez and Carter support the conclusion that the serial\\nnumber in this case was altered because its location was changed in a way that\\nmakes accurate information less accessible.\\n Jones finally argues that removal of a serial number is not an alteration\\nor obliteration because the guideline does not include the word “remove.” In\\nCarter, the Ninth Circuit discussed the meanings of the words “obliterated”\\nand “altered.” 15 That court observed that “‘obliterate’ is defined by Black’s Law\\nDictionary as ‘[t]o remove from existence’” and that “‘altered’ . . . requires a\\nlesser degree of defacement.” 16\\n The Ninth Circuit subsequently held, in United States v. Romero-\\nMartinez, that “‘removed’ falls comfortably within dictionary definitions of\\n‘obliterated.’” 17 The defendant in that case possessed a firearm that “was\\nmissing the serial number on the frame” that had been “cast as a metal plate\\naffixed to the frame.” 18 “Romero-Martinez challenge[d] the inclusion of\\n\\n\\n 13 Thigpen, 848 F.3d at 845–46 (citing Warren, 820 F.3d at 408; Serrano-Mercado, 784\\nF.3d at 850).\\n 14 This argument is based on the grammatical structure of the guideline. Jones argues\\n\\nthat “altered or obliterated” modifies “serial number” not “firearm.”\\n 15 Carter, 421 F.3d at 912–13.\\n 16 Id. at 912.\\n 17 443 F.3d 1185, 1189 (9th Cir. 2006).\\n 18 Id. at 1187.\\n\\n\\n\\n 4\\n\\f Case: 18-10590 Document: 00515005893 Page: 5 Date Filed: 06/21/2019\\n\\n\\n No. 18-10590\\n\\n‘removed’ within the definition of ‘obliterated.’” 19 The Ninth Circuit rejected\\nthat argument and held that Guideline § 2K2.1(b)(4) applied because “the\\nremoval of the metal plate certainly makes the firearm less traceable.” 20\\n This court in Perez held that “a firearm’s serial number is ‘altered or\\nobliterated’ when it is materially changed in a way that makes accurate\\ninformation less accessible.” 21 Removal of the metal serial-number plate from\\nthe frame of a firearm is a material change in the location of the serial number\\nthat makes accurate information, viz., the serial number identifying that\\nfirearm, less accessible. Removal of the metal serial-number plate thus alters\\nor obliterates the serial number under Guideline § 2K2.1(b)(4).\\nAFFIRMED.\\n\\n\\n\\n\\n 19 Id.\\n 20 Id. at 1191.\\n 21 Perez, 585 F.3d at 885 (quoting Carter, 421 F.3d at 916).\\n\\n\\n\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2468,"cells":{"id":{"kind":"number","value":4631977,"string":"4,631,977"},"name":{"kind":"string","value":"Norvis HARMON, Plaintiff-Appellant v. DALLAS COUNTY, TEXAS ; Derick Evans, Defendants-Appellees"},"name_abbreviation":{"kind":"string","value":"Norvis Harmon v. Dallas County, Texas"},"decision_date":{"kind":"string","value":"2019-06-21"},"docket_number":{"kind":"string","value":"18-10353"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Reavley, Elrod, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 18-10353 Document: 00515005995 Page: 1 Date Filed: 06/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-10353 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 21, 2019\\nNORVIS HARMON,\\n Lyle W. Cayce\\n Plaintiff - Appellant Clerk\\n\\n\\nv.\\n\\nDALLAS COUNTY, TEXAS; DERICK EVANS,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n This case is about an employment relationship that did not turn out well.\\nNorvis Harmon, a former deputy constable, brought this action under 42\\nU.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He\\nalleges the defendants violated his First Amendment rights when he was\\nterminated for reporting the illegal acts of Evans and others to law-\\nenforcement authorities. Harmon additionally alleges the defendants denied\\nhim equal protection of the law in refusing to hear his grievance.\\n This is Harmon’s second lawsuit based on these facts, as he previously\\nfiled a state-court lawsuit against Dallas County aggrieving the circumstances\\nof his termination. He did not enjoy a favorable judgment in that suit.\\n\\f Case: 18-10353 Document: 00515005995 Page: 2 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n The district court below disposed of Harmon’s claims through a series of\\nsummary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s\\nclaims against Dallas County as barred by res judicata, 2 and dismissed\\nHarmon’s claims against Evans in his individual capacity on the basis of\\nqualified immunity. 3 For the reasons stated herein, we AFFIRM.\\n I.\\n Harmon is a former deputy constable in Precinct 1 of the Dallas County\\nConstable’s Office. During his employment, Harmon became aware that Evans\\nand his other superiors were up to some not-so-good things, to wit: (1) requiring\\ndeputies to work for Evans’s political allies without pay; (2) requiring deputies\\nto donate time and money to Evans’s re-election campaign; (3) illegally setting\\nquotas for writing traffic citations; and (4) requiring deputies to tow citizens’\\nvehicles after traffic stops, and to do so with a certain towing company with\\nwhom Evans shared a close relationship.\\n In November 2009, Harmon reported these activities to Defenbaugh &\\nAssociates, an investigative firm hired by the Dallas County Commissioner’s\\nCourt. Harmon alleges he made similar reports to the Dallas County Human\\nResources Department, the Dallas County District Attorney, and the Federal\\nBureau of Investigation.\\n Things then went downhill. Word spread that certain deputies were\\nspeaking out, prompting Evans to call a meeting in which he made couched\\nthreats that he would retaliate against those who did. In March 2010, the\\nDallas Morning News published an article describing the results of the\\n\\n\\n\\n 1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.\\n2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,\\n2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.\\nSupp. 3d 814 (N.D. Tex. 2017).\\n 2 Harmon I, 248 F. Supp. 3d at 822.\\n 3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.\\n\\n 2\\n\\f Case: 18-10353 Document: 00515005995 Page: 3 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\ninvestigation and confirmed that certain deputies had spoken out against\\nEvans’s illegal activities. 4 Although the article did not identify any of the\\ndeputies by name, a separate investigative report did. 5\\n Evans later initiated an administrative investigation into Harmon and,\\nfinding at least one discrepancy in Harmon’s GPS reports, terminated him\\n(from employment) on June 3, 2011. Harmon tried to grieve his termination to\\nEvans, as his department head, and to Dallas County. These attempts were\\nnot successful, because deputy constables hired after August 19, 2003 are\\nexcluded from the Dallas County Civil Service Commission’s grievance system\\nprocedure. 6 As Harmon was hired in 2008, he did not have grievance rights.\\nSo, Harmon turned to litigation.\\n Harmon first sued Dallas County in Texas state court. He asserted\\nclaims for alleged violations of the Texas Whistleblower Act and Texas\\nGovernment Code § 617.005, 7 and an equal protection violation under the\\nTexas Constitution. In addition, Harmon sought injunctive relief and\\ndeclaratory relief in connection with his equal protection claim, and a\\n\\n\\n\\n\\n 4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have\\nBroken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS\\n(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-\\nConstable-Derick-9350.\\n 5 Evans was eventually convicted for engaging in organized criminal activity. The\\n\\nconviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,\\nat *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).\\n 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A\\n\\nemployee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A\\nclassified employees are excluded from coverage afforded in employment procedures relating\\nto job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right\\nof appeal, and grievance system procedures of this Code.”).\\n 7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public\\n\\nemployees to present grievances concerning their wages, hours of employment, or conditions\\nof work either individually or through a representative that does not claim the right to\\nstrike.”).\\n 3\\n\\f Case: 18-10353 Document: 00515005995 Page: 4 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\ndeclaration that Evans’s actions were “illegal and void.” Evans was not a party\\nto the state-court action.\\n The County moved to dismiss Harmon’s suit for lack of subject-matter\\njurisdiction, arguing that governmental immunity barred Harmon’s\\nconstitutional claims, as well as those brought under the Whistleblower Act\\nand Local Government Code. The County also argued that Harmon’s requests\\nfor injunctive and declaratory relief embraced ultra vires acts that could only\\nbe asserted against Evans, who was not a party to the suit. The court agreed\\nwith the County, dismissed Harmon’s claims with prejudice, and granted\\nHarmon the opportunity to replead his claims for declaratory and injunctive\\nrelief. Harmon did not, and the state court eventually entered final judgment\\ndisposing of all claims and parties on November 7, 2013.\\n Harmon brought his second suit in federal court, asserting two claims\\nunder § 1983: (1) a retaliation claim under the First Amendment, and (2) an\\nequal protection claim based on the denial of his right to petition the\\ngovernment. In addition to suing the County (again), Harmon also sued Evans\\nin both his individual and official capacities. Evans asserted the defense of\\nqualified immunity, so the district court ordered Harmon to file a Rule 7(a)\\nreply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the\\npleadings based on his qualified-immunity defense, and both defendants later\\nfiled a limited motion for summary judgment asserting that res judicata barred\\nHarmon’s federal suit. 8\\n The district court held that res judicata barred Harmon’s suit as to the\\nCounty and Evans in his official capacity, and then granted Evans’s Rule 12(c)\\nmotion on the basis of qualified immunity as to Harmon’s First Amendment\\n\\n\\n\\n\\n 8 We have simplified the motion practice before the district court.\\n 4\\n\\f Case: 18-10353 Document: 00515005995 Page: 5 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nretaliation claim. 9 Harmon, however—and to the apparent surprise of the\\ndistrict court and the parties—argued that he still had lingering claims under\\nthe First Amendment’s Petition Clause. The district court granted Evans the\\nopportunity to file a dispositive motion on those claims, 10 and then granted his\\nmotion when he did. 11 Harmon timely appealed.\\n II.\\n Harmon brings three issues on appeal. He first argues that res judicata\\ndoes not apply to this case. Next, he argues the district court erred in granting\\nEvans qualified immunity on his First Amendment retaliation claim because\\nhis right to engage in the speech at issue was clearly established at the time of\\nhis termination. Finally, Harmon contends the district court was wrong to\\ngrant Evans qualified immunity on his claims under the First Amendment’s\\nPetition Clause. We address each in turn.\\n III.\\n We apply Texas law to determine the res judicata effect of a Texas\\njudgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d\\n632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th\\nCir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment\\non the merits by a court of competent jurisdiction; (2) identity of parties or\\nthose in privity with them; and (3) a second action based on the same claims\\nas were raised or could have been raised in the first action.” Amstadt v. U.S.\\nBrass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we\\n\\n\\n\\n\\n 9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.\\n 10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion\\nregarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four\\nyears. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding\\nthis claim by April 28, 2017.”).\\n 11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on\\n\\nthe basis of qualified immunity).\\n 5\\n\\f Case: 18-10353 Document: 00515005995 Page: 6 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nconclude that res judicata bars Harmon’s claims against the County and Evans\\nin his official capacity, but not as to Evans in his individual capacity.\\n The first element is met because, under Texas law, a dismissal based on\\ngovernmental immunity constitutes a final judgment on the merits for\\npurposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644\\n(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the\\njurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.\\nWalker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on\\nimmunity grounds under Texas law is a dismissal on the merits for purposes\\nof res judicata.”). As mentioned, the state court dismissed Harmon’s claims\\nwith prejudice based on the County’s assertion that it was entitled to\\ngovernmental immunity and later entered a final judgment disposing of all\\nclaims and parties. This element is met.\\n The third element presents an easy solve under Texas’s “transactional”\\napproach. “Under this approach, a judgment in an earlier suit ‘precludes a\\nsecond action by the parties and their privies not only on matters actually\\nlitigated, but also on causes of action or defenses which arise out of the same\\nsubject matter and which might have been litigated in the first suit.’” Getty Oil\\nCo. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In\\nthis case, both of Harmon’s suits arise from the same operative facts and\\nsubject matter—Harmon’s allegedly unlawful termination and his inability to\\nfile a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,\\nnothing prevented Harmon from bringing his federal claims in state court. See\\nid. We conclude this element is also met.\\n Stepping back, the second element—privity—presents a closer question,\\nbut our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.\\n\\n\\n\\n\\n 6\\n\\f Case: 18-10353 Document: 00515005995 Page: 7 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n1997) supplies the answer. 12 Warnock stands for the basic proposition that\\nprivity does not exist between a governmental entity and an employee later\\nsued in his or her individual capacity. See id. at 778. The plaintiff in Warnock\\nalleged that two state district court judges retaliated against her for\\nwhistleblowing. Although her initial state-court suit against the county was\\nunsuccessful, the plaintiff later filed suit in federal court against the county\\nand the judges in their official and individual capacities. Id. at 777. The district\\ncourt concluded that res judicata barred suit against the judges in both\\ncapacities, but we disagreed, holding that privity was lacking “between the\\ncounty and judges in their individual capacities.” Id. at 778. We cited to Conner\\nv. Reinhard for support, in which the Seventh Circuit explained that “a city\\nofficial sued in his official capacity is generally in privity with the\\nmunicipality,” but that “[a] government official sued in his personal capacity,\\nhowever, presents a different case.” 847 F.2d 394–95 (7th Cir. 1988). The\\nreasons for drawing this distinction are legion:\\n If the plaintiff prevails against the official, the official must satisfy\\n the judgment out of his own pocket, rather than having the\\n government entity pay the damages. See Kentucky v. Graham, 473\\n U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In\\n addition, different legal theories may be necessary to prove\\n liability in a personal-capacity, as opposed to an official-capacity,\\n case. Also, different defenses are available to a defendant who is\\n sued in his personal capacity. Therefore, courts do not generally\\n consider an official sued in his personal capacity as being in privity\\n with the government.\\nId. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.\\nMiller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships\\nbetween a government and its officials justify preclusion only as to litigation\\n\\n\\n\\n 12 There is no question this element is satisfied as to the County, as it was a party in\\nthe prior suit.\\n 7\\n\\f Case: 18-10353 Document: 00515005995 Page: 8 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nundertaken in an official capacity.”). 13 To that end, district courts in this circuit\\nhave applied Warnock to circumstances analogous to those at hand. See Benson\\nv. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.\\nMar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look\\n‘pragmatically’ at the privity issue by deciding whether the parties are\\n‘sufficiently close.’ But Warnock makes clear that defendants sued in their\\nindividual capacities are not ‘sufficiently close’ to their public employers for the\\nlogical reason that they both have different defenses.”). Thus, res judicata does\\nnot bar Harmon’s individual-capacity claims against Evans.\\n But we agree with the district court that res judicata bars any official-\\ncapacity claims against Evans. An official-capacity claim, after all, is\\nessentially a claim against the County. See Turner v. Houma Mun. Fire &\\nPolice Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when\\n“a defendant government official is sued in his individual and official capacity,\\nand the city or state is also sued,” the “official-capacity claims and the claims\\nagainst the governmental entity essentially merge”); Olibas v. Dodson, 593 F.\\nApp’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims\\nagainst a municipal official in his official capacity are claims against the\\ncounty. . . . Therefore, we need not consider the County separate from the\\nSheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x\\n767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars\\nHarmon’s claims against the County, it also bars Harmon’s official-capacity\\nclaims against Evans. However, because res judicata does not bar Harmon’s\\nindividual-capacity claims, we proceed, as did the district court, to the merits.\\n\\n\\n 13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists\\nbetween the agency and Defendant Wright, who is sued in his official capacity; but privity\\ndoes not exist between the agency and the other three Defendants, who are sued in their\\nindividual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment\\nagainst a government does not bind its officials sued in their personal capacities.”).\\n 8\\n\\f Case: 18-10353 Document: 00515005995 Page: 9 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n IV.\\n Harmon alleges he was terminated in retaliation for engaging in\\nprotected speech under the First Amendment. Evans, in a Rule 12(c) motion,\\nasserted the defense of qualified immunity. After ordering supplemental\\nbriefing on this point, the district court held that the law regarding Harmon’s\\nspeech was not clearly established at the time of his termination and thus\\nEvans was entitled to qualified immunity on Harmon’s retaliation claim. 14\\n We review de novo a district court’s ruling on a Rule 12(c) motion for\\njudgment on the pleadings asserting qualified immunity. Johnson v. Halstead,\\n916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines\\nwhether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”\\nId. (citation omitted). “When the defendant asserts qualified immunity, the\\ncourt can order the plaintiff to submit a reply, refuting the immunity claim\\n‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be\\ntailored to the assertion of qualified immunity and fairly engage its\\nallegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.\\n1995)).\\n\\n\\n\\n\\n 14 This case was originally before then-Chief Judge Solis, who denied Evans’s\\nqualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,\\nat *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would\\nhave understood such retaliation to be in violation of Harmon’s statutory or constitutional\\nrights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte\\nrevisited this issue. Judge Lindsay vacated that prior order, concluding that the law\\nregarding Harmon’s speech was not clearly established at the time of his termination.\\nBecause the denial of qualified immunity is an interlocutory order, the court was free to\\nrevisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool\\nWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary\\njudgment is an interlocutory order, the trial court is free to reconsider and reverse its decision\\nfor any reason it deems sufficient, even in the absence of new evidence or an intervening\\nchange in or clarification of the substantive law.”), abrogated on other grounds, Little v.\\nLiquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).\\n\\n 9\\n\\f Case: 18-10353 Document: 00515005995 Page: 10 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n “To evaluate whether a government official is entitled to qualified\\nimmunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed\\nfacts and the disputed facts, accepting the plaintiffs’ version of the disputed\\nfacts as true, constitute a violation of a constitutional right, and (2) whether\\nthe defendant’s conduct was objectively reasonable in light of clearly\\nestablished law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)\\n(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).\\n“We have discretion to address either prong first without necessarily\\naddressing the other.” Id.\\n To establish a claim for retaliation under the First Amendment, a\\nplaintiff must show, inter alia, that he “spoke as a citizen on a matter of public\\nconcern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,\\n845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption\\nundoubtedly constitutes speech on a matter of public concern, 15 Garcetti\\ninstructs to “first decide whether the plaintiff was speaking as a citizen\\ndisassociated with his public duties, or whether the plaintiff was speaking in\\nfurtherance of the duties of his or her public employment.” Howell v. Town of\\nBall, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in\\nspeech pursuant to their official duties, they “are not speaking as citizens for\\nFirst Amendment purposes, and the Constitution does not insulate their\\ncommunications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,\\nthe Supreme Court “emphasized that ‘[t]he critical question under Garcetti is\\nwhether the speech at issue is itself ordinarily within the scope of an\\n\\n\\n\\n 15 See Lane v. Franks, 573 U.S. 228, 541 (2014) (“The content of Lane’s testimony—\\ncorruption in a public program and misuse of state funds—obviously involves a matter of\\nsignificant public concern”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency\\nand misconduct is a matter of considerable significance”); Markos v. City of Atlanta, Tex., 364\\nF.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about\\nalleged corruption in the police department, a subject undoubtedly of public concern.”).\\n 10\\n\\f Case: 18-10353 Document: 00515005995 Page: 11 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nemployee’s duties, not whether it merely concerns those duties.” Id. (quoting\\nLane, 573 U.S. at 240).\\n We applied these principles in Howell v. Town of Ball, which we find\\ncontrolling. In Howell, we held that a Louisiana police officer’s confidential\\ninvolvement with an FBI-led investigation into the illegal acts of the mayor\\nand other local officials was not “in furtherance of his ordinary job duties.” 827\\nF.3d at 524. Although we agreed the police officer’s First Amendment rights\\nwere violated when he was terminated in retaliation for cooperating with the\\nFBI’s investigation, we ultimately concluded the defendants were entitled to\\nqualified immunity because, at the time of the officer’s termination, “it was not\\nclearly established whether his involvement in the FBI investigation was\\nprotected under the First Amendment.” Id. at 525. We explained that:\\n At the time that Howell was fired, Garcetti’s distinction between\\n speech made pursuant to official duties and speech made as a\\n private citizen was relatively new, and this court had not\\n considered it in the context of an action involving a police officer’s\\n statements to an outside law enforcement agency, or in the context\\n of a law enforcement officer’s assistance with an outside agency’s\\n investigation. Garcetti, by its own admission, did not “articulate a\\n comprehensive framework for defining the scope of an employee’s\\n duties in cases where there is room for serious debate.” See 547\\n U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did\\n not emphasize that only speech made in furtherance of an\\n employee’s “ordinary” job duties is not protected until nearly three\\n years after Howell was discharged.\\n The lack of the application of Garcetti to similar facts at the time\\n of Howell’s discharge, coupled with the Supreme Court’s only\\n recent clarification of Garcetti’s citizen/employee distinction\\n in Lane, compels us to hold that the Board defendants did not\\n violate a “clearly established” constitutional right when voting to\\n fire Howell. We thus affirm the district court’s grant of qualified\\n immunity to the Board defendants.\\n\\nId. 525–26 (some internal citations omitted).\\n\\n\\n 11\\n\\f Case: 18-10353 Document: 00515005995 Page: 12 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n The parties here essentially agree that Harmon alleges a violation of his\\nFirst Amendment rights; indeed, Evans concedes—ultimately to his\\nadvantage, of course—that “the facts in Howell are identical to the speech at\\nissue in this case.” And Harmon alleges that it was not part of his ordinary\\nduties as a deputy constable to report the illegal acts of his supervisors to\\ninvestigators, the FBI, and other authorities. Even so, Harmon’s termination\\noccurred just one month prior to the officer’s termination in Howell, where we\\nheld that it was not clearly established whether a law enforcement officer’s\\ninvolvement in an investigation with outside law-enforcement enjoyed\\nprotection under the First Amendment. Accordingly, the same result in Howell\\nmust obtain here. 16 We thus agree with the district court that Evans is entitled\\nto qualified immunity on Harmon’s First Amendment retaliation claim.\\n V.\\n Finally, we address Harmon’s claims under the First Amendment’s\\nPetition Clause, which “protects ‘the right of the people . . . to petition the\\nGovernment for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,\\n564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).\\n As best we can tell, Harmon attempts to bring two “petition” claims. 17\\nThe first appears to be a straight-up petition claim based on Evans’s refusal to\\n\\n\\n 16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his\\nargument that the law regarding his speech was clearly protected at the time of his\\ntermination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,\\ngiven the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-\\nestablished at the time of Harmon’s termination requires us to consider the specific context\\nof the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define\\nclearly established law at a high level of generality,’ but rather are to pay close attention to\\n‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement\\nofficer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so\\nwe follow Howell.\\n 17 Harmon gears much of his Petition Clause arguments towards Dallas County and\\n\\nits decision to exclude deputy constables hired before August 19, 2003 from its grievance\\nsystem. Because we hold that res judicata bars Harmon’s claims against the County and\\nEvans in his official capacity, we do not address these arguments.\\n 12\\n\\f Case: 18-10353 Document: 00515005995 Page: 13 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nhear his grievance; that is, Harmon alleges that Evans’s refusal to hear his\\ngrievance violated his “fundamental” right to petition the government.\\nHarmon’s second claim appears to be an equal-protection variant and is\\nsimilarly based upon Evans’s refusal to hear his grievance. We address each in\\nturn. 18\\n Harmon’s first theory fails for the very basic reason that his attempted\\ngrievance involved a matter of private concern. Indeed, “[i]f a public employee\\npetitions as an employee on a matter of purely private concern, the\\nemployee’s First Amendment interest must give way, as it does in speech\\ncases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,\\nwhich is a matter of public concern—is not at issue here; rather, the issue\\nconcerns Harmon’s grievance. By its very nature, however, an employee’s\\ngrievance from termination will not ordinarily constitute a matter of public\\nconcern. See id. (“A petition filed with an employer using an internal grievance\\nprocedure in many cases will not seek to communicate to the public or to\\nadvance a political or social point of view beyond the employment context.”);\\nGibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel\\ndisputes and management decisions are rarely a matter of public concern.”).\\nWe think the district court said it well:\\n There is no evidence that Harmon was using the petition appealing\\n his employment termination as a platform to publicly air his\\n concerns about Evans’s conduct. He, instead, was merely using the\\n petition to appeal the termination of his employment as any\\n employee, private or public, would do. In other words, the point of\\n Harmon’s appeal was not to present concerns about Evans’s\\n conduct but to seek reinstatement of his employment as deputy\\n constable with the County.\\n\\n\\n\\n 18The district court held that Harmon’s Petition Clause claims were not properly\\nbefore the court but nevertheless addressed them on the merits. We limit our analysis here\\nto the merits.\\n 13\\n\\f Case: 18-10353 Document: 00515005995 Page: 14 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nHarmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim\\nhere is against Evans in his individual capacity—and thus seeks damages from\\nhim personally—underscores our conviction that Harmon’s attempt to grieve\\nhis termination with Evans constituted but a matter of private concern. See\\nGibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—\\nprovides significant support for the conclusion that it was not a matter of public\\nconcern.”). Finding no violation of Harmon’s First Amendment right to\\npetition, we agree with the district court that Evans was entitled to qualified\\nimmunity on this claim.\\n To succeed on his equal protection claim, Harmon must show that “two\\nor more classifications of similarly situated persons were treated differently.”\\nGallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).\\nHarmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or\\na regular practice to not hear grievances of employees, including grievances by\\ndeputy constables.” Thus, Harmon does not allege that Evans treated similarly\\nsituated deputy constables differently; to the contrary, Harmon alleges that\\nEvans’s regular practice was to refuse grievances all together, and his equal\\nprotection claim fails for that reason. The district court did not err in granting\\nEvans qualified immunity on this claim.\\n AFFIRMED.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409230/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"REAVLEY"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631977/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Norvis HARMON, Plaintiff-Appellant v. DALLAS COUNTY, TEXAS ; Derick Evans, Defendants-Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10353 Document: 00515005995 Page: 1 Date Filed: 06/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-10353 United States Court of Appeals\n Fifth Circuit\n\n FILED\n June 21, 2019\nNORVIS HARMON,\n Lyle W. Cayce\n Plaintiff - Appellant Clerk\n\n\nv.\n\nDALLAS COUNTY, TEXAS; DERICK EVANS,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nPER CURIAM:\n This case is about an employment relationship that did not turn out well.\nNorvis Harmon, a former deputy constable, brought this action under 42\nU.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He\nalleges the defendants violated his First Amendment rights when he was\nterminated for reporting the illegal acts of Evans and others to law-\nenforcement authorities. Harmon additionally alleges the defendants denied\nhim equal protection of the law in refusing to hear his grievance.\n This is Harmon’s second lawsuit based on these facts, as he previously\nfiled a state-court lawsuit against Dallas County aggrieving the circumstances\nof his termination. He did not enjoy a favorable judgment in that suit.\n\f Case: 18-10353 Document: 00515005995 Page: 2 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\n The district court below disposed of Harmon’s claims through a series of\nsummary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s\nclaims against Dallas County as barred by res judicata, 2 and dismissed\nHarmon’s claims against Evans in his individual capacity on the basis of\nqualified immunity. 3 For the reasons stated herein, we AFFIRM.\n I.\n Harmon is a former deputy constable in Precinct 1 of the Dallas County\nConstable’s Office. During his employment, Harmon became aware that Evans\nand his other superiors were up to some not-so-good things, to wit: (1) requiring\ndeputies to work for Evans’s political allies without pay; (2) requiring deputies\nto donate time and money to Evans’s re-election campaign; (3) illegally setting\nquotas for writing traffic citations; and (4) requiring deputies to tow citizens’\nvehicles after traffic stops, and to do so with a certain towing company with\nwhom Evans shared a close relationship.\n In November 2009, Harmon reported these activities to Defenbaugh &\nAssociates, an investigative firm hired by the Dallas County Commissioner’s\nCourt. Harmon alleges he made similar reports to the Dallas County Human\nResources Department, the Dallas County District Attorney, and the Federal\nBureau of Investigation.\n Things then went downhill. Word spread that certain deputies were\nspeaking out, prompting Evans to call a meeting in which he made couched\nthreats that he would retaliate against those who did. In March 2010, the\nDallas Morning News published an article describing the results of the\n\n\n\n 1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.\n2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,\n2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.\nSupp. 3d 814 (N.D. Tex. 2017).\n 2 Harmon I, 248 F. Supp. 3d at 822.\n 3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.\n\n 2\n\f Case: 18-10353 Document: 00515005995 Page: 3 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\ninvestigation and confirmed that certain deputies had spoken out against\nEvans’s illegal activities. 4 Although the article did not identify any of the\ndeputies by name, a separate investigative report did. 5\n Evans later initiated an administrative investigation into Harmon and,\nfinding at least one discrepancy in Harmon’s GPS reports, terminated him\n(from employment) on June 3, 2011. Harmon tried to grieve his termination to\nEvans, as his department head, and to Dallas County. These attempts were\nnot successful, because deputy constables hired after August 19, 2003 are\nexcluded from the Dallas County Civil Service Commission’s grievance system\nprocedure. 6 As Harmon was hired in 2008, he did not have grievance rights.\nSo, Harmon turned to litigation.\n Harmon first sued Dallas County in Texas state court. He asserted\nclaims for alleged violations of the Texas Whistleblower Act and Texas\nGovernment Code § 617.005, 7 and an equal protection violation under the\nTexas Constitution. In addition, Harmon sought injunctive relief and\ndeclaratory relief in connection with his equal protection claim, and a\n\n\n\n\n 4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have\nBroken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS\n(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-\nConstable-Derick-9350.\n 5 Evans was eventually convicted for engaging in organized criminal activity. The\n\nconviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,\nat *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).\n 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A\n\nemployee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A\nclassified employees are excluded from coverage afforded in employment procedures relating\nto job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right\nof appeal, and grievance system procedures of this Code.”).\n 7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public\n\nemployees to present grievances concerning their wages, hours of employment, or conditions\nof work either individually or through a representative that does not claim the right to\nstrike.”).\n 3\n\f Case: 18-10353 Document: 00515005995 Page: 4 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\ndeclaration that Evans’s actions were “illegal and void.” Evans was not a party\nto the state-court action.\n The County moved to dismiss Harmon’s suit for lack of subject-matter\njurisdiction, arguing that governmental immunity barred Harmon’s\nconstitutional claims, as well as those brought under the Whistleblower Act\nand Local Government Code. The County also argued that Harmon’s requests\nfor injunctive and declaratory relief embraced ultra vires acts that could only\nbe asserted against Evans, who was not a party to the suit. The court agreed\nwith the County, dismissed Harmon’s claims with prejudice, and granted\nHarmon the opportunity to replead his claims for declaratory and injunctive\nrelief. Harmon did not, and the state court eventually entered final judgment\ndisposing of all claims and parties on November 7, 2013.\n Harmon brought his second suit in federal court, asserting two claims\nunder § 1983: (1) a retaliation claim under the First Amendment, and (2) an\nequal protection claim based on the denial of his right to petition the\ngovernment. In addition to suing the County (again), Harmon also sued Evans\nin both his individual and official capacities. Evans asserted the defense of\nqualified immunity, so the district court ordered Harmon to file a Rule 7(a)\nreply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the\npleadings based on his qualified-immunity defense, and both defendants later\nfiled a limited motion for summary judgment asserting that res judicata barred\nHarmon’s federal suit. 8\n The district court held that res judicata barred Harmon’s suit as to the\nCounty and Evans in his official capacity, and then granted Evans’s Rule 12(c)\nmotion on the basis of qualified immunity as to Harmon’s First Amendment\n\n\n\n\n 8 We have simplified the motion practice before the district court.\n 4\n\f Case: 18-10353 Document: 00515005995 Page: 5 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\nretaliation claim. 9 Harmon, however—and to the apparent surprise of the\ndistrict court and the parties—argued that he still had lingering claims under\nthe First Amendment’s Petition Clause. The district court granted Evans the\nopportunity to file a dispositive motion on those claims, 10 and then granted his\nmotion when he did. 11 Harmon timely appealed.\n II.\n Harmon brings three issues on appeal. He first argues that res judicata\ndoes not apply to this case. Next, he argues the district court erred in granting\nEvans qualified immunity on his First Amendment retaliation claim because\nhis right to engage in the speech at issue was clearly established at the time of\nhis termination. Finally, Harmon contends the district court was wrong to\ngrant Evans qualified immunity on his claims under the First Amendment’s\nPetition Clause. We address each in turn.\n III.\n We apply Texas law to determine the res judicata effect of a Texas\njudgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d\n632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th\nCir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment\non the merits by a court of competent jurisdiction; (2) identity of parties or\nthose in privity with them; and (3) a second action based on the same claims\nas were raised or could have been raised in the first action.” Amstadt v. U.S.\nBrass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we\n\n\n\n\n 9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.\n 10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion\nregarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four\nyears. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding\nthis claim by April 28, 2017.”).\n 11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on\n\nthe basis of qualified immunity).\n 5\n\f Case: 18-10353 Document: 00515005995 Page: 6 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\nconclude that res judicata bars Harmon’s claims against the County and Evans\nin his official capacity, but not as to Evans in his individual capacity.\n The first element is met because, under Texas law, a dismissal based on\ngovernmental immunity constitutes a final judgment on the merits for\npurposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644\n(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the\njurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.\nWalker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on\nimmunity grounds under Texas law is a dismissal on the merits for purposes\nof res judicata.”). As mentioned, the state court dismissed Harmon’s claims\nwith prejudice based on the County’s assertion that it was entitled to\ngovernmental immunity and later entered a final judgment disposing of all\nclaims and parties. This element is met.\n The third element presents an easy solve under Texas’s “transactional”\napproach. “Under this approach, a judgment in an earlier suit ‘precludes a\nsecond action by the parties and their privies not only on matters actually\nlitigated, but also on causes of action or defenses which arise out of the same\nsubject matter and which might have been litigated in the first suit.’” Getty Oil\nCo. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In\nthis case, both of Harmon’s suits arise from the same operative facts and\nsubject matter—Harmon’s allegedly unlawful termination and his inability to\nfile a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,\nnothing prevented Harmon from bringing his federal claims in state court. See\nid. We conclude this element is also met.\n Stepping back, the second element—privity—presents a closer question,\nbut our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.\n\n\n\n\n 6\n\f Case: 18-10353 Document: 00515005995 Page: 7 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\n1997) supplies the answer. 12 Warnock stands for the basic proposition that\nprivity does not exist between a governmental entity and an employee later\nsued in his or her individual capacity. See id. at 778. The plaintiff in Warnock\nalleged that two state district court judges retaliated against her for\nwhistleblowing. Although her initial state-court suit against the county was\nunsuccessful, the plaintiff later filed suit in federal court against the county\nand the judges in their official and individual capacities. Id. at 777. The district\ncourt concluded that res judicata barred suit against the judges in both\ncapacities, but we disagreed, holding that privity was lacking “between the\ncounty and judges in their individual capacities.” Id. at 778. We cited to Conner\nv. Reinhard for support, in which the Seventh Circuit explained that “a city\nofficial sued in his official capacity is generally in privity with the\nmunicipality,” but that “[a] government official sued in his personal capacity,\nhowever, presents a different case.” 847 F.2d 394–95 (7th Cir. 1988). The\nreasons for drawing this distinction are legion:\n If the plaintiff prevails against the official, the official must satisfy\n the judgment out of his own pocket, rather than having the\n government entity pay the damages. See Kentucky v. Graham, 473\n U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In\n addition, different legal theories may be necessary to prove\n liability in a personal-capacity, as opposed to an official-capacity,\n case. Also, different defenses are available to a defendant who is\n sued in his personal capacity. Therefore, courts do not generally\n consider an official sued in his personal capacity as being in privity\n with the government.\nId. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.\nMiller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships\nbetween a government and its officials justify preclusion only as to litigation\n\n\n\n 12 There is no question this element is satisfied as to the County, as it was a party in\nthe prior suit.\n 7\n\f Case: 18-10353 Document: 00515005995 Page: 8 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\nundertaken in an official capacity.”). 13 To that end, district courts in this circuit\nhave applied Warnock to circumstances analogous to those at hand. See Benson\nv. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.\nMar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look\n‘pragmatically’ at the privity issue by deciding whether the parties are\n‘sufficiently close.’ But Warnock makes clear that defendants sued in their\nindividual capacities are not ‘sufficiently close’ to their public employers for the\nlogical reason that they both have different defenses.”). Thus, res judicata does\nnot bar Harmon’s individual-capacity claims against Evans.\n But we agree with the district court that res judicata bars any official-\ncapacity claims against Evans. An official-capacity claim, after all, is\nessentially a claim against the County. See Turner v. Houma Mun. Fire &\nPolice Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when\n“a defendant government official is sued in his individual and official capacity,\nand the city or state is also sued,” the “official-capacity claims and the claims\nagainst the governmental entity essentially merge”); Olibas v. Dodson, 593 F.\nApp’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims\nagainst a municipal official in his official capacity are claims against the\ncounty. . . . Therefore, we need not consider the County separate from the\nSheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x\n767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars\nHarmon’s claims against the County, it also bars Harmon’s official-capacity\nclaims against Evans. However, because res judicata does not bar Harmon’s\nindividual-capacity claims, we proceed, as did the district court, to the merits.\n\n\n 13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists\nbetween the agency and Defendant Wright, who is sued in his official capacity; but privity\ndoes not exist between the agency and the other three Defendants, who are sued in their\nindividual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment\nagainst a government does not bind its officials sued in their personal capacities.”).\n 8\n\f Case: 18-10353 Document: 00515005995 Page: 9 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\n IV.\n Harmon alleges he was terminated in retaliation for engaging in\nprotected speech under the First Amendment. Evans, in a Rule 12(c) motion,\nasserted the defense of qualified immunity. After ordering supplemental\nbriefing on this point, the district court held that the law regarding Harmon’s\nspeech was not clearly established at the time of his termination and thus\nEvans was entitled to qualified immunity on Harmon’s retaliation claim. 14\n We review de novo a district court’s ruling on a Rule 12(c) motion for\njudgment on the pleadings asserting qualified immunity. Johnson v. Halstead,\n916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines\nwhether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”\nId. (citation omitted). “When the defendant asserts qualified immunity, the\ncourt can order the plaintiff to submit a reply, refuting the immunity claim\n‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be\ntailored to the assertion of qualified immunity and fairly engage its\nallegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.\n1995)).\n\n\n\n\n 14 This case was originally before then-Chief Judge Solis, who denied Evans’s\nqualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,\nat *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would\nhave understood such retaliation to be in violation of Harmon’s statutory or constitutional\nrights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte\nrevisited this issue. Judge Lindsay vacated that prior order, concluding that the law\nregarding Harmon’s speech was not clearly established at the time of his termination.\nBecause the denial of qualified immunity is an interlocutory order, the court was free to\nrevisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool\nWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary\njudgment is an interlocutory order, the trial court is free to reconsider and reverse its decision\nfor any reason it deems sufficient, even in the absence of new evidence or an intervening\nchange in or clarification of the substantive law.”), abrogated on other grounds, Little v.\nLiquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).\n\n 9\n\f Case: 18-10353 Document: 00515005995 Page: 10 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\n “To evaluate whether a government official is entitled to qualified\nimmunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed\nfacts and the disputed facts, accepting the plaintiffs’ version of the disputed\nfacts as true, constitute a violation of a constitutional right, and (2) whether\nthe defendant’s conduct was objectively reasonable in light of clearly\nestablished law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)\n(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).\n“We have discretion to address either prong first without necessarily\naddressing the other.” Id.\n To establish a claim for retaliation under the First Amendment, a\nplaintiff must show, inter alia, that he “spoke as a citizen on a matter of public\nconcern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,\n845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption\nundoubtedly constitutes speech on a matter of public concern, 15 Garcetti\ninstructs to “first decide whether the plaintiff was speaking as a citizen\ndisassociated with his public duties, or whether the plaintiff was speaking in\nfurtherance of the duties of his or her public employment.” Howell v. Town of\nBall, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in\nspeech pursuant to their official duties, they “are not speaking as citizens for\nFirst Amendment purposes, and the Constitution does not insulate their\ncommunications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,\nthe Supreme Court “emphasized that ‘[t]he critical question under Garcetti is\nwhether the speech at issue is itself ordinarily within the scope of an\n\n\n\n 15 See Lane v. Franks, 573 U.S. 228, 541 (2014) (“The content of Lane’s testimony—\ncorruption in a public program and misuse of state funds—obviously involves a matter of\nsignificant public concern”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency\nand misconduct is a matter of considerable significance”); Markos v. City of Atlanta, Tex., 364\nF.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about\nalleged corruption in the police department, a subject undoubtedly of public concern.”).\n 10\n\f Case: 18-10353 Document: 00515005995 Page: 11 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\nemployee’s duties, not whether it merely concerns those duties.” Id. (quoting\nLane, 573 U.S. at 240).\n We applied these principles in Howell v. Town of Ball, which we find\ncontrolling. In Howell, we held that a Louisiana police officer’s confidential\ninvolvement with an FBI-led investigation into the illegal acts of the mayor\nand other local officials was not “in furtherance of his ordinary job duties.” 827\nF.3d at 524. Although we agreed the police officer’s First Amendment rights\nwere violated when he was terminated in retaliation for cooperating with the\nFBI’s investigation, we ultimately concluded the defendants were entitled to\nqualified immunity because, at the time of the officer’s termination, “it was not\nclearly established whether his involvement in the FBI investigation was\nprotected under the First Amendment.” Id. at 525. We explained that:\n At the time that Howell was fired, Garcetti’s distinction between\n speech made pursuant to official duties and speech made as a\n private citizen was relatively new, and this court had not\n considered it in the context of an action involving a police officer’s\n statements to an outside law enforcement agency, or in the context\n of a law enforcement officer’s assistance with an outside agency’s\n investigation. Garcetti, by its own admission, did not “articulate a\n comprehensive framework for defining the scope of an employee’s\n duties in cases where there is room for serious debate.” See 547\n U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did\n not emphasize that only speech made in furtherance of an\n employee’s “ordinary” job duties is not protected until nearly three\n years after Howell was discharged.\n The lack of the application of Garcetti to similar facts at the time\n of Howell’s discharge, coupled with the Supreme Court’s only\n recent clarification of Garcetti’s citizen/employee distinction\n in Lane, compels us to hold that the Board defendants did not\n violate a “clearly established” constitutional right when voting to\n fire Howell. We thus affirm the district court’s grant of qualified\n immunity to the Board defendants.\n\nId. 525–26 (some internal citations omitted).\n\n\n 11\n\f Case: 18-10353 Document: 00515005995 Page: 12 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\n The parties here essentially agree that Harmon alleges a violation of his\nFirst Amendment rights; indeed, Evans concedes—ultimately to his\nadvantage, of course—that “the facts in Howell are identical to the speech at\nissue in this case.” And Harmon alleges that it was not part of his ordinary\nduties as a deputy constable to report the illegal acts of his supervisors to\ninvestigators, the FBI, and other authorities. Even so, Harmon’s termination\noccurred just one month prior to the officer’s termination in Howell, where we\nheld that it was not clearly established whether a law enforcement officer’s\ninvolvement in an investigation with outside law-enforcement enjoyed\nprotection under the First Amendment. Accordingly, the same result in Howell\nmust obtain here. 16 We thus agree with the district court that Evans is entitled\nto qualified immunity on Harmon’s First Amendment retaliation claim.\n V.\n Finally, we address Harmon’s claims under the First Amendment’s\nPetition Clause, which “protects ‘the right of the people . . . to petition the\nGovernment for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,\n564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).\n As best we can tell, Harmon attempts to bring two “petition” claims. 17\nThe first appears to be a straight-up petition claim based on Evans’s refusal to\n\n\n 16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his\nargument that the law regarding his speech was clearly protected at the time of his\ntermination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,\ngiven the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-\nestablished at the time of Harmon’s termination requires us to consider the specific context\nof the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define\nclearly established law at a high level of generality,’ but rather are to pay close attention to\n‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement\nofficer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so\nwe follow Howell.\n 17 Harmon gears much of his Petition Clause arguments towards Dallas County and\n\nits decision to exclude deputy constables hired before August 19, 2003 from its grievance\nsystem. Because we hold that res judicata bars Harmon’s claims against the County and\nEvans in his official capacity, we do not address these arguments.\n 12\n\f Case: 18-10353 Document: 00515005995 Page: 13 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\nhear his grievance; that is, Harmon alleges that Evans’s refusal to hear his\ngrievance violated his “fundamental” right to petition the government.\nHarmon’s second claim appears to be an equal-protection variant and is\nsimilarly based upon Evans’s refusal to hear his grievance. We address each in\nturn. 18\n Harmon’s first theory fails for the very basic reason that his attempted\ngrievance involved a matter of private concern. Indeed, “[i]f a public employee\npetitions as an employee on a matter of purely private concern, the\nemployee’s First Amendment interest must give way, as it does in speech\ncases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,\nwhich is a matter of public concern—is not at issue here; rather, the issue\nconcerns Harmon’s grievance. By its very nature, however, an employee’s\ngrievance from termination will not ordinarily constitute a matter of public\nconcern. See id. (“A petition filed with an employer using an internal grievance\nprocedure in many cases will not seek to communicate to the public or to\nadvance a political or social point of view beyond the employment context.”);\nGibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel\ndisputes and management decisions are rarely a matter of public concern.”).\nWe think the district court said it well:\n There is no evidence that Harmon was using the petition appealing\n his employment termination as a platform to publicly air his\n concerns about Evans’s conduct. He, instead, was merely using the\n petition to appeal the termination of his employment as any\n employee, private or public, would do. In other words, the point of\n Harmon’s appeal was not to present concerns about Evans’s\n conduct but to seek reinstatement of his employment as deputy\n constable with the County.\n\n\n\n 18The district court held that Harmon’s Petition Clause claims were not properly\nbefore the court but nevertheless addressed them on the merits. We limit our analysis here\nto the merits.\n 13\n\f Case: 18-10353 Document: 00515005995 Page: 14 Date Filed: 06/21/2019\n\n\n\n No. 18-10353\nHarmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim\nhere is against Evans in his individual capacity—and thus seeks damages from\nhim personally—underscores our conviction that Harmon’s attempt to grieve\nhis termination with Evans constituted but a matter of private concern. See\nGibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—\nprovides significant support for the conclusion that it was not a matter of public\nconcern.”). Finding no violation of Harmon’s First Amendment right to\npetition, we agree with the district court that Evans was entitled to qualified\nimmunity on this claim.\n To succeed on his equal protection claim, Harmon must show that “two\nor more classifications of similarly situated persons were treated differently.”\nGallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).\nHarmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or\na regular practice to not hear grievances of employees, including grievances by\ndeputy constables.” Thus, Harmon does not allege that Evans treated similarly\nsituated deputy constables differently; to the contrary, Harmon alleges that\nEvans’s regular practice was to refuse grievances all together, and his equal\nprotection claim fails for that reason. The district court did not err in granting\nEvans qualified immunity on this claim.\n AFFIRMED.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Norvis HARMON, Plaintiff-Appellant v. DALLAS COUNTY, TEXAS ; Derick Evans, Defendants-Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10353 Document: 00515005995 Page: 1 Date Filed: 06/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-10353 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 21, 2019\\nNORVIS HARMON,\\n Lyle W. Cayce\\n Plaintiff - Appellant Clerk\\n\\n\\nv.\\n\\nDALLAS COUNTY, TEXAS; DERICK EVANS,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n This case is about an employment relationship that did not turn out well.\\nNorvis Harmon, a former deputy constable, brought this action under 42\\nU.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He\\nalleges the defendants violated his First Amendment rights when he was\\nterminated for reporting the illegal acts of Evans and others to law-\\nenforcement authorities. Harmon additionally alleges the defendants denied\\nhim equal protection of the law in refusing to hear his grievance.\\n This is Harmon’s second lawsuit based on these facts, as he previously\\nfiled a state-court lawsuit against Dallas County aggrieving the circumstances\\nof his termination. He did not enjoy a favorable judgment in that suit.\\n\\f Case: 18-10353 Document: 00515005995 Page: 2 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n The district court below disposed of Harmon’s claims through a series of\\nsummary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s\\nclaims against Dallas County as barred by res judicata, 2 and dismissed\\nHarmon’s claims against Evans in his individual capacity on the basis of\\nqualified immunity. 3 For the reasons stated herein, we AFFIRM.\\n I.\\n Harmon is a former deputy constable in Precinct 1 of the Dallas County\\nConstable’s Office. During his employment, Harmon became aware that Evans\\nand his other superiors were up to some not-so-good things, to wit: (1) requiring\\ndeputies to work for Evans’s political allies without pay; (2) requiring deputies\\nto donate time and money to Evans’s re-election campaign; (3) illegally setting\\nquotas for writing traffic citations; and (4) requiring deputies to tow citizens’\\nvehicles after traffic stops, and to do so with a certain towing company with\\nwhom Evans shared a close relationship.\\n In November 2009, Harmon reported these activities to Defenbaugh &\\nAssociates, an investigative firm hired by the Dallas County Commissioner’s\\nCourt. Harmon alleges he made similar reports to the Dallas County Human\\nResources Department, the Dallas County District Attorney, and the Federal\\nBureau of Investigation.\\n Things then went downhill. Word spread that certain deputies were\\nspeaking out, prompting Evans to call a meeting in which he made couched\\nthreats that he would retaliate against those who did. In March 2010, the\\nDallas Morning News published an article describing the results of the\\n\\n\\n\\n 1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.\\n2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,\\n2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.\\nSupp. 3d 814 (N.D. Tex. 2017).\\n 2 Harmon I, 248 F. Supp. 3d at 822.\\n 3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.\\n\\n 2\\n\\f Case: 18-10353 Document: 00515005995 Page: 3 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\ninvestigation and confirmed that certain deputies had spoken out against\\nEvans’s illegal activities. 4 Although the article did not identify any of the\\ndeputies by name, a separate investigative report did. 5\\n Evans later initiated an administrative investigation into Harmon and,\\nfinding at least one discrepancy in Harmon’s GPS reports, terminated him\\n(from employment) on June 3, 2011. Harmon tried to grieve his termination to\\nEvans, as his department head, and to Dallas County. These attempts were\\nnot successful, because deputy constables hired after August 19, 2003 are\\nexcluded from the Dallas County Civil Service Commission’s grievance system\\nprocedure. 6 As Harmon was hired in 2008, he did not have grievance rights.\\nSo, Harmon turned to litigation.\\n Harmon first sued Dallas County in Texas state court. He asserted\\nclaims for alleged violations of the Texas Whistleblower Act and Texas\\nGovernment Code § 617.005, 7 and an equal protection violation under the\\nTexas Constitution. In addition, Harmon sought injunctive relief and\\ndeclaratory relief in connection with his equal protection claim, and a\\n\\n\\n\\n\\n 4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have\\nBroken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS\\n(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-\\nConstable-Derick-9350.\\n 5 Evans was eventually convicted for engaging in organized criminal activity. The\\n\\nconviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,\\nat *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).\\n 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A\\n\\nemployee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A\\nclassified employees are excluded from coverage afforded in employment procedures relating\\nto job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right\\nof appeal, and grievance system procedures of this Code.”).\\n 7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public\\n\\nemployees to present grievances concerning their wages, hours of employment, or conditions\\nof work either individually or through a representative that does not claim the right to\\nstrike.”).\\n 3\\n\\f Case: 18-10353 Document: 00515005995 Page: 4 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\ndeclaration that Evans’s actions were “illegal and void.” Evans was not a party\\nto the state-court action.\\n The County moved to dismiss Harmon’s suit for lack of subject-matter\\njurisdiction, arguing that governmental immunity barred Harmon’s\\nconstitutional claims, as well as those brought under the Whistleblower Act\\nand Local Government Code. The County also argued that Harmon’s requests\\nfor injunctive and declaratory relief embraced ultra vires acts that could only\\nbe asserted against Evans, who was not a party to the suit. The court agreed\\nwith the County, dismissed Harmon’s claims with prejudice, and granted\\nHarmon the opportunity to replead his claims for declaratory and injunctive\\nrelief. Harmon did not, and the state court eventually entered final judgment\\ndisposing of all claims and parties on November 7, 2013.\\n Harmon brought his second suit in federal court, asserting two claims\\nunder § 1983: (1) a retaliation claim under the First Amendment, and (2) an\\nequal protection claim based on the denial of his right to petition the\\ngovernment. In addition to suing the County (again), Harmon also sued Evans\\nin both his individual and official capacities. Evans asserted the defense of\\nqualified immunity, so the district court ordered Harmon to file a Rule 7(a)\\nreply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the\\npleadings based on his qualified-immunity defense, and both defendants later\\nfiled a limited motion for summary judgment asserting that res judicata barred\\nHarmon’s federal suit. 8\\n The district court held that res judicata barred Harmon’s suit as to the\\nCounty and Evans in his official capacity, and then granted Evans’s Rule 12(c)\\nmotion on the basis of qualified immunity as to Harmon’s First Amendment\\n\\n\\n\\n\\n 8 We have simplified the motion practice before the district court.\\n 4\\n\\f Case: 18-10353 Document: 00515005995 Page: 5 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nretaliation claim. 9 Harmon, however—and to the apparent surprise of the\\ndistrict court and the parties—argued that he still had lingering claims under\\nthe First Amendment’s Petition Clause. The district court granted Evans the\\nopportunity to file a dispositive motion on those claims, 10 and then granted his\\nmotion when he did. 11 Harmon timely appealed.\\n II.\\n Harmon brings three issues on appeal. He first argues that res judicata\\ndoes not apply to this case. Next, he argues the district court erred in granting\\nEvans qualified immunity on his First Amendment retaliation claim because\\nhis right to engage in the speech at issue was clearly established at the time of\\nhis termination. Finally, Harmon contends the district court was wrong to\\ngrant Evans qualified immunity on his claims under the First Amendment’s\\nPetition Clause. We address each in turn.\\n III.\\n We apply Texas law to determine the res judicata effect of a Texas\\njudgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d\\n632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th\\nCir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment\\non the merits by a court of competent jurisdiction; (2) identity of parties or\\nthose in privity with them; and (3) a second action based on the same claims\\nas were raised or could have been raised in the first action.” Amstadt v. U.S.\\nBrass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we\\n\\n\\n\\n\\n 9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.\\n 10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion\\nregarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four\\nyears. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding\\nthis claim by April 28, 2017.”).\\n 11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on\\n\\nthe basis of qualified immunity).\\n 5\\n\\f Case: 18-10353 Document: 00515005995 Page: 6 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nconclude that res judicata bars Harmon’s claims against the County and Evans\\nin his official capacity, but not as to Evans in his individual capacity.\\n The first element is met because, under Texas law, a dismissal based on\\ngovernmental immunity constitutes a final judgment on the merits for\\npurposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644\\n(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the\\njurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.\\nWalker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on\\nimmunity grounds under Texas law is a dismissal on the merits for purposes\\nof res judicata.”). As mentioned, the state court dismissed Harmon’s claims\\nwith prejudice based on the County’s assertion that it was entitled to\\ngovernmental immunity and later entered a final judgment disposing of all\\nclaims and parties. This element is met.\\n The third element presents an easy solve under Texas’s “transactional”\\napproach. “Under this approach, a judgment in an earlier suit ‘precludes a\\nsecond action by the parties and their privies not only on matters actually\\nlitigated, but also on causes of action or defenses which arise out of the same\\nsubject matter and which might have been litigated in the first suit.’” Getty Oil\\nCo. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In\\nthis case, both of Harmon’s suits arise from the same operative facts and\\nsubject matter—Harmon’s allegedly unlawful termination and his inability to\\nfile a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,\\nnothing prevented Harmon from bringing his federal claims in state court. See\\nid. We conclude this element is also met.\\n Stepping back, the second element—privity—presents a closer question,\\nbut our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.\\n\\n\\n\\n\\n 6\\n\\f Case: 18-10353 Document: 00515005995 Page: 7 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n1997) supplies the answer. 12 Warnock stands for the basic proposition that\\nprivity does not exist between a governmental entity and an employee later\\nsued in his or her individual capacity. See id. at 778. The plaintiff in Warnock\\nalleged that two state district court judges retaliated against her for\\nwhistleblowing. Although her initial state-court suit against the county was\\nunsuccessful, the plaintiff later filed suit in federal court against the county\\nand the judges in their official and individual capacities. Id. at 777. The district\\ncourt concluded that res judicata barred suit against the judges in both\\ncapacities, but we disagreed, holding that privity was lacking “between the\\ncounty and judges in their individual capacities.” Id. at 778. We cited to Conner\\nv. Reinhard for support, in which the Seventh Circuit explained that “a city\\nofficial sued in his official capacity is generally in privity with the\\nmunicipality,” but that “[a] government official sued in his personal capacity,\\nhowever, presents a different case.” 847 F.2d 394–95 (7th Cir. 1988). The\\nreasons for drawing this distinction are legion:\\n If the plaintiff prevails against the official, the official must satisfy\\n the judgment out of his own pocket, rather than having the\\n government entity pay the damages. See Kentucky v. Graham, 473\\n U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In\\n addition, different legal theories may be necessary to prove\\n liability in a personal-capacity, as opposed to an official-capacity,\\n case. Also, different defenses are available to a defendant who is\\n sued in his personal capacity. Therefore, courts do not generally\\n consider an official sued in his personal capacity as being in privity\\n with the government.\\nId. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.\\nMiller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships\\nbetween a government and its officials justify preclusion only as to litigation\\n\\n\\n\\n 12 There is no question this element is satisfied as to the County, as it was a party in\\nthe prior suit.\\n 7\\n\\f Case: 18-10353 Document: 00515005995 Page: 8 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nundertaken in an official capacity.”). 13 To that end, district courts in this circuit\\nhave applied Warnock to circumstances analogous to those at hand. See Benson\\nv. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.\\nMar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look\\n‘pragmatically’ at the privity issue by deciding whether the parties are\\n‘sufficiently close.’ But Warnock makes clear that defendants sued in their\\nindividual capacities are not ‘sufficiently close’ to their public employers for the\\nlogical reason that they both have different defenses.”). Thus, res judicata does\\nnot bar Harmon’s individual-capacity claims against Evans.\\n But we agree with the district court that res judicata bars any official-\\ncapacity claims against Evans. An official-capacity claim, after all, is\\nessentially a claim against the County. See Turner v. Houma Mun. Fire &\\nPolice Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when\\n“a defendant government official is sued in his individual and official capacity,\\nand the city or state is also sued,” the “official-capacity claims and the claims\\nagainst the governmental entity essentially merge”); Olibas v. Dodson, 593 F.\\nApp’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims\\nagainst a municipal official in his official capacity are claims against the\\ncounty. . . . Therefore, we need not consider the County separate from the\\nSheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x\\n767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars\\nHarmon’s claims against the County, it also bars Harmon’s official-capacity\\nclaims against Evans. However, because res judicata does not bar Harmon’s\\nindividual-capacity claims, we proceed, as did the district court, to the merits.\\n\\n\\n 13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists\\nbetween the agency and Defendant Wright, who is sued in his official capacity; but privity\\ndoes not exist between the agency and the other three Defendants, who are sued in their\\nindividual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment\\nagainst a government does not bind its officials sued in their personal capacities.”).\\n 8\\n\\f Case: 18-10353 Document: 00515005995 Page: 9 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n IV.\\n Harmon alleges he was terminated in retaliation for engaging in\\nprotected speech under the First Amendment. Evans, in a Rule 12(c) motion,\\nasserted the defense of qualified immunity. After ordering supplemental\\nbriefing on this point, the district court held that the law regarding Harmon’s\\nspeech was not clearly established at the time of his termination and thus\\nEvans was entitled to qualified immunity on Harmon’s retaliation claim. 14\\n We review de novo a district court’s ruling on a Rule 12(c) motion for\\njudgment on the pleadings asserting qualified immunity. Johnson v. Halstead,\\n916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines\\nwhether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”\\nId. (citation omitted). “When the defendant asserts qualified immunity, the\\ncourt can order the plaintiff to submit a reply, refuting the immunity claim\\n‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be\\ntailored to the assertion of qualified immunity and fairly engage its\\nallegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.\\n1995)).\\n\\n\\n\\n\\n 14 This case was originally before then-Chief Judge Solis, who denied Evans’s\\nqualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,\\nat *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would\\nhave understood such retaliation to be in violation of Harmon’s statutory or constitutional\\nrights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte\\nrevisited this issue. Judge Lindsay vacated that prior order, concluding that the law\\nregarding Harmon’s speech was not clearly established at the time of his termination.\\nBecause the denial of qualified immunity is an interlocutory order, the court was free to\\nrevisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool\\nWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary\\njudgment is an interlocutory order, the trial court is free to reconsider and reverse its decision\\nfor any reason it deems sufficient, even in the absence of new evidence or an intervening\\nchange in or clarification of the substantive law.”), abrogated on other grounds, Little v.\\nLiquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).\\n\\n 9\\n\\f Case: 18-10353 Document: 00515005995 Page: 10 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n “To evaluate whether a government official is entitled to qualified\\nimmunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed\\nfacts and the disputed facts, accepting the plaintiffs’ version of the disputed\\nfacts as true, constitute a violation of a constitutional right, and (2) whether\\nthe defendant’s conduct was objectively reasonable in light of clearly\\nestablished law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)\\n(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).\\n“We have discretion to address either prong first without necessarily\\naddressing the other.” Id.\\n To establish a claim for retaliation under the First Amendment, a\\nplaintiff must show, inter alia, that he “spoke as a citizen on a matter of public\\nconcern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,\\n845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption\\nundoubtedly constitutes speech on a matter of public concern, 15 Garcetti\\ninstructs to “first decide whether the plaintiff was speaking as a citizen\\ndisassociated with his public duties, or whether the plaintiff was speaking in\\nfurtherance of the duties of his or her public employment.” Howell v. Town of\\nBall, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in\\nspeech pursuant to their official duties, they “are not speaking as citizens for\\nFirst Amendment purposes, and the Constitution does not insulate their\\ncommunications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,\\nthe Supreme Court “emphasized that ‘[t]he critical question under Garcetti is\\nwhether the speech at issue is itself ordinarily within the scope of an\\n\\n\\n\\n 15 See Lane v. Franks, 573 U.S. 228, 541 (2014) (“The content of Lane’s testimony—\\ncorruption in a public program and misuse of state funds—obviously involves a matter of\\nsignificant public concern”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency\\nand misconduct is a matter of considerable significance”); Markos v. City of Atlanta, Tex., 364\\nF.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about\\nalleged corruption in the police department, a subject undoubtedly of public concern.”).\\n 10\\n\\f Case: 18-10353 Document: 00515005995 Page: 11 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nemployee’s duties, not whether it merely concerns those duties.” Id. (quoting\\nLane, 573 U.S. at 240).\\n We applied these principles in Howell v. Town of Ball, which we find\\ncontrolling. In Howell, we held that a Louisiana police officer’s confidential\\ninvolvement with an FBI-led investigation into the illegal acts of the mayor\\nand other local officials was not “in furtherance of his ordinary job duties.” 827\\nF.3d at 524. Although we agreed the police officer’s First Amendment rights\\nwere violated when he was terminated in retaliation for cooperating with the\\nFBI’s investigation, we ultimately concluded the defendants were entitled to\\nqualified immunity because, at the time of the officer’s termination, “it was not\\nclearly established whether his involvement in the FBI investigation was\\nprotected under the First Amendment.” Id. at 525. We explained that:\\n At the time that Howell was fired, Garcetti’s distinction between\\n speech made pursuant to official duties and speech made as a\\n private citizen was relatively new, and this court had not\\n considered it in the context of an action involving a police officer’s\\n statements to an outside law enforcement agency, or in the context\\n of a law enforcement officer’s assistance with an outside agency’s\\n investigation. Garcetti, by its own admission, did not “articulate a\\n comprehensive framework for defining the scope of an employee’s\\n duties in cases where there is room for serious debate.” See 547\\n U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did\\n not emphasize that only speech made in furtherance of an\\n employee’s “ordinary” job duties is not protected until nearly three\\n years after Howell was discharged.\\n The lack of the application of Garcetti to similar facts at the time\\n of Howell’s discharge, coupled with the Supreme Court’s only\\n recent clarification of Garcetti’s citizen/employee distinction\\n in Lane, compels us to hold that the Board defendants did not\\n violate a “clearly established” constitutional right when voting to\\n fire Howell. We thus affirm the district court’s grant of qualified\\n immunity to the Board defendants.\\n\\nId. 525–26 (some internal citations omitted).\\n\\n\\n 11\\n\\f Case: 18-10353 Document: 00515005995 Page: 12 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\n The parties here essentially agree that Harmon alleges a violation of his\\nFirst Amendment rights; indeed, Evans concedes—ultimately to his\\nadvantage, of course—that “the facts in Howell are identical to the speech at\\nissue in this case.” And Harmon alleges that it was not part of his ordinary\\nduties as a deputy constable to report the illegal acts of his supervisors to\\ninvestigators, the FBI, and other authorities. Even so, Harmon’s termination\\noccurred just one month prior to the officer’s termination in Howell, where we\\nheld that it was not clearly established whether a law enforcement officer’s\\ninvolvement in an investigation with outside law-enforcement enjoyed\\nprotection under the First Amendment. Accordingly, the same result in Howell\\nmust obtain here. 16 We thus agree with the district court that Evans is entitled\\nto qualified immunity on Harmon’s First Amendment retaliation claim.\\n V.\\n Finally, we address Harmon’s claims under the First Amendment’s\\nPetition Clause, which “protects ‘the right of the people . . . to petition the\\nGovernment for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,\\n564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).\\n As best we can tell, Harmon attempts to bring two “petition” claims. 17\\nThe first appears to be a straight-up petition claim based on Evans’s refusal to\\n\\n\\n 16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his\\nargument that the law regarding his speech was clearly protected at the time of his\\ntermination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,\\ngiven the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-\\nestablished at the time of Harmon’s termination requires us to consider the specific context\\nof the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define\\nclearly established law at a high level of generality,’ but rather are to pay close attention to\\n‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement\\nofficer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so\\nwe follow Howell.\\n 17 Harmon gears much of his Petition Clause arguments towards Dallas County and\\n\\nits decision to exclude deputy constables hired before August 19, 2003 from its grievance\\nsystem. Because we hold that res judicata bars Harmon’s claims against the County and\\nEvans in his official capacity, we do not address these arguments.\\n 12\\n\\f Case: 18-10353 Document: 00515005995 Page: 13 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nhear his grievance; that is, Harmon alleges that Evans’s refusal to hear his\\ngrievance violated his “fundamental” right to petition the government.\\nHarmon’s second claim appears to be an equal-protection variant and is\\nsimilarly based upon Evans’s refusal to hear his grievance. We address each in\\nturn. 18\\n Harmon’s first theory fails for the very basic reason that his attempted\\ngrievance involved a matter of private concern. Indeed, “[i]f a public employee\\npetitions as an employee on a matter of purely private concern, the\\nemployee’s First Amendment interest must give way, as it does in speech\\ncases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,\\nwhich is a matter of public concern—is not at issue here; rather, the issue\\nconcerns Harmon’s grievance. By its very nature, however, an employee’s\\ngrievance from termination will not ordinarily constitute a matter of public\\nconcern. See id. (“A petition filed with an employer using an internal grievance\\nprocedure in many cases will not seek to communicate to the public or to\\nadvance a political or social point of view beyond the employment context.”);\\nGibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel\\ndisputes and management decisions are rarely a matter of public concern.”).\\nWe think the district court said it well:\\n There is no evidence that Harmon was using the petition appealing\\n his employment termination as a platform to publicly air his\\n concerns about Evans’s conduct. He, instead, was merely using the\\n petition to appeal the termination of his employment as any\\n employee, private or public, would do. In other words, the point of\\n Harmon’s appeal was not to present concerns about Evans’s\\n conduct but to seek reinstatement of his employment as deputy\\n constable with the County.\\n\\n\\n\\n 18The district court held that Harmon’s Petition Clause claims were not properly\\nbefore the court but nevertheless addressed them on the merits. We limit our analysis here\\nto the merits.\\n 13\\n\\f Case: 18-10353 Document: 00515005995 Page: 14 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-10353\\nHarmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim\\nhere is against Evans in his individual capacity—and thus seeks damages from\\nhim personally—underscores our conviction that Harmon’s attempt to grieve\\nhis termination with Evans constituted but a matter of private concern. See\\nGibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—\\nprovides significant support for the conclusion that it was not a matter of public\\nconcern.”). Finding no violation of Harmon’s First Amendment right to\\npetition, we agree with the district court that Evans was entitled to qualified\\nimmunity on this claim.\\n To succeed on his equal protection claim, Harmon must show that “two\\nor more classifications of similarly situated persons were treated differently.”\\nGallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).\\nHarmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or\\na regular practice to not hear grievances of employees, including grievances by\\ndeputy constables.” Thus, Harmon does not allege that Evans treated similarly\\nsituated deputy constables differently; to the contrary, Harmon alleges that\\nEvans’s regular practice was to refuse grievances all together, and his equal\\nprotection claim fails for that reason. The district court did not err in granting\\nEvans qualified immunity on this claim.\\n AFFIRMED.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2469,"cells":{"id":{"kind":"number","value":4632056,"string":"4,632,056"},"name":{"kind":"string","value":"Carl YOUNG, Plaintiff-Appellee, v. BOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"Young v. Bd. of Supervisors of Humphreys Cnty."},"decision_date":{"kind":"string","value":"2019-06-21"},"docket_number":{"kind":"string","value":"18-60618"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Wiener, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-60618 Document: 00515006809 Page: 1 Date Filed: 06/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-60618 June 21, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nCARL YOUNG,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nBOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Mississippi\\n\\n\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Carl Young sued the Board of Supervisors of Humphreys County, Missis-\\nsippi (“the Board”), and its president under 42 U.S.C. § 1983, contending that\\nthey had unlawfully deprived him of the use of several of his properties. A jury\\nreturned a verdict for Young, and the district court denied the Board’s motion\\nfor judgment as a matter of law (“JMOL”) or a new trial. Finding no reversible\\nerror, we affirm.\\n\\f Case: 18-60618 Document: 00515006809 Page: 2 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\n I.\\n Young bought three empty houses on September 2, 2015, and retained a\\nlocal contractor eight days later to clean and renovate them. On September 18,\\nCharles Edwards, the County Building Inspector, posted a condemnation\\nnotice on one of the properties, declaring each of them unsafe and ordering\\n“[a]ll persons . . . to keep out as long as this notice remains posted.” Nonethe-\\nless, according to Edwards, Young’s properties complied with county rules and\\nordinances and state law at the time he posted the notice. In fact, Edwards\\ntestified that he would not have posted the condemnation notice except that\\nR.D. “Dickie” Stevens—the president of the Board 1—had instructed him to do\\nso. 2\\n\\n On October 5, the Board met and unanimously voted to hold a hearing\\non November 17 for the condemnation of Young’s properties. 3 The Board main-\\ntains that the term “condemnation” in its October meeting minutes was “a cler-\\nical error.” It further avers that it was not trying to condemn Young’s proper-\\nties but was attempting to give Young notice that he needed to clean them up.\\nThe Board separately stipulated, however, that it “speaks through its Min-\\nutes.” In any event, the Board instructed its attorney to send Young a letter\\ntelling him to remove, by November 17, debris left by the previous owners.\\nWillie Bailey, the Board’s attorney, sent Young a letter on October 13, explain-\\ning that the Board had voted to hold a hearing on November 17 “to determine\\n\\n\\n 1 The Board is a five-person body that governs Humphreys County.\\n Stevens disputed that narrative at trial, insisting that he had told Edwards to put\\n 2\\n\\nup a “cease and desist” sign informing all persons to stop entering the properties and taking\\nitems from the houses.\\n The meeting minutes describe that vote as follows: “Supervisor Broomfield moved\\n 3\\n\\nand Supervisor Brown seconded the motion setting a hearing on November 17, 2015[,] for\\nowner of property in North Gate and Griffin Circle for condemnation of property.” (Capitali-\\nzation omitted and emphasis added.) The Board members passed the motion by a 5–0 vote.\\n 2\\n\\f Case: 18-60618 Document: 00515006809 Page: 3 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nwhether the property . . . [was] in such a state of uncleanliness as to be a men-\\nace to the public health, safety and welfare of the community.”\\n\\n Young appeared at the November meeting and asked for a continuance\\nto obtain counsel. The parties continued the hearing until December 7. Young\\nobtained counsel, who informed the Board a few days before the rescheduled\\nhearing of Young’s intent to sue the Board. The Board, in turn, told Young\\nthat it would not hold the hearing and was turning the situation over to its\\ninsurance company.\\n\\n The Board never conducted a condemnation hearing, and neither Stev-\\nens nor any other Board member instructed Edwards to remove the condem-\\nnation notice from Young’s property. The notice remained in effect for over two\\nyears until the Board sent Young a letter on February 12, 2018, telling him\\nthat he could enter his properties and start repairs.\\n\\n II.\\n Young sued the Board and Stevens, in his individual and official capaci-\\nties, in state court, seeking civil damages under § 1983. Young alleged that\\nStevens, acting under color of state law, had violated his Fifth and Fourteenth\\nAmendment rights by instructing Edwards to post the condemnation notice\\nwithout a legal basis. Young averred that the Board was liable also because it\\nhad ratified Stevens’s actions during the October 2015 meeting by unani-\\nmously voting to continue condemnation proceedings.\\n\\n Defendants removed, and the district court dismissed the claims against\\nStevens but allowed the claims against the Board to proceed to trial. The sole\\nissue was whether the Board had ratified Stevens’s actions, meaning that it\\ncould be held liable under § 1983. The Board unsuccessfully moved for JMOL\\nat the end of Young’s case-in-chief. The Board renewed its motion after its\\n\\n 3\\n\\f Case: 18-60618 Document: 00515006809 Page: 4 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\ncase-in-chief, and the court again denied it. The jury returned a verdict for\\nYoung, awarding $25,000 in damages. The court entered a final judgment for\\n$43,261.57 in damages, taxes, fees, and litigation expenses. The Board timely\\nmoved for a JMOL under Federal Rule of Civil Procedure 50(b) or, in the alter-\\nnative, a new trial. The court denied the motion, and the Board appealed.\\n\\n III.\\n A.\\n The Board contends that it was entitled to a JMOL because Young failed\\nto make out a § 1983 claim under a theory of ratification. “We review de novo\\nthe district court’s denial of a motion for [JMOL], applying the same standard\\nas the district court.” Seibert v. Jackson Cty., 851 F.3d 430, 434 (5th Cir. 2017)\\n(quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008)). “A JMOL is\\nappropriate when ‘a reasonable jury would not have a legally sufficient eviden-\\ntiary basis to find for the [non-moving] party on that issue.’” Id. (quoting FED.\\nR. CIV. P. 50(a)). “When a case is tried to a jury, a motion for [JMOL] ‘is a\\nchallenge to the legal sufficiency of the evidence supporting the jury’s verdict.’”\\nCowart v. Erwin, 837 F.3d 444, 450 (5th Cir. 2016) (quoting Heck v. Triche,\\n775 F.3d 265, 272 (5th Cir. 2014)). Our review of the jury’s verdict is highly\\ndeferential. “[W]e draw all reasonable inferences and resolve all credibility\\ndeterminations in the light most favorable to the nonmoving party, and will\\nuphold the verdict unless there is no legally sufficient evidentiary basis for a\\nreasonable jury to find as the jury did.” Id. (internal quotation marks and\\ncitation omitted).\\n\\n “To establish municipal [or county] liability under § 1983, a plaintiff\\nmust show that (1) an official policy (2) promulgated by the municipal policy-\\nmaker (3) was the moving force behind the violation of a constitutional right.”\\nPeterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009); see also FIFTH\\n\\n 4\\n\\f Case: 18-60618 Document: 00515006809 Page: 5 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nCIRCUIT PATTERN JURY INSTRUCTIONS (Civil Rights—42 U.S.C. § 1983) 10.5\\n(2016). One way of establishing liability is to show that a policymaker ratified\\nthe acts of a subordinate. “If the authorized policymakers approve a subordin-\\nate’s decision and the basis for it, their ratification would be chargeable to the\\nmunicipality because their decision is final.” City of St. Louis v. Praprotnik,\\n485 U.S. 112, 127 (1988). We have “limited the theory of ratification to extreme\\nfactual situations.” Peterson, 588 F.3d at 848 (internal quotation marks and\\ncitation omitted). “[U]nless the subordinate’s actions are sufficiently\\nextreme—for instance, an obvious violation of clearly established law—a\\npolicymaker’s ratification . . . is insufficient to establish an official policy or\\ncustom.” World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d\\n747, 755 (5th Cir. 2009). 4\\n\\n There was legally sufficient evidence for a reasonable jury to conclude\\nthat the Board ratified the unlawful initiation of condemnation proceedings.\\nDrawing all inferences in the light most favorable to Young, testimony at trial\\nshowed that Stevens had directed Edwards to post the condemnation notice,\\neven though Young’s properties were compliant with state and county law. The\\nBoard ratified that action at its next meeting by unanimously voting to proceed\\nwith condemnation, and the notice was not withdrawn for over two years.\\nThose facts are “sufficiently extreme,” id., to support a finding that the Board\\napproved both Stevens’s direction to post the condemnation notice and the\\n\\n\\n\\n 4 The Board suggests that we have limited the ratification theory almost exclusively\\nto cases involving a “use of excessive force that resulted in bodily injuries or death.” To the\\ncontrary, we have regularly applied ratification to economic injuries. See Culbertson v. Lykos,\\n790 F.3d 608, 621–22 (5th Cir. 2015) (finding that plaintiffs alleged sufficient facts to allow\\ntheir challenge to the loss of their jobs to proceed on a ratification theory). The Board also\\nwrongly maintains that a ratification theory of liability is appropriate only where the injury\\nis particularly severe. But World Wide Street Preachers Fellowship, 591 F.3d at 755, indi-\\ncates that the theory applies where a policymaker ratifies, for example, “an obvious violation\\nof clearly established law.”\\n 5\\n\\f Case: 18-60618 Document: 00515006809 Page: 6 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nunderlying implication that the properties were condemnable.\\n\\n The Board counters that it is “undisputed” that the Board never voted to\\napprove Stevens’s direction to Edwards to post the condemnation notice on\\nYoung’s property, nor did it vote to approve the basis for Stevens’s decision.\\nThough the Board did not specifically vote to ratify Stevens’s action or the rea-\\nsons supporting it, taking the facts in the light most favorable to Young, the\\nBoard’s unanimous vote to proceed with condemnation is legally sufficient evi-\\ndence for a reasonable jury to conclude that the Board ratified Stevens’s deci-\\nsion to have Edwards post the notice.\\n\\n B.\\n The Board challenges the verdict based on three alleged errors in the\\njury instructions. “We review challenges to jury instructions for abuse of dis-\\ncretion and afford the trial court great latitude in the framing and structure of\\njury instructions.” Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 240\\n(5th Cir. 2014). To show reversible error, the party challenging the instruction\\n“must demonstrate that the charge as a whole creates ‘substantial and ineradi-\\ncable doubt whether the jury has been properly guided in its deliberations.’”\\nF.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994) (quoting Bender v. Brum-\\nley, 1 F.3d 271, 276 (5th Cir. 1993)). Even if we find that the “instructions were\\nerroneous, we will not reverse if we determine, based upon the entire record,\\nthat the challenged instruction could not have affected the outcome of the\\ncase.” Id.\\n\\n 1.\\n The Board takes issue with Jury Instruction 4, which told the jury that\\nit could find the Board liable if it found, by a preponderance of the evidence,\\none of three things: (1) “The Board of Supervisors authorized a violation of\\n\\n 6\\n\\f Case: 18-60618 Document: 00515006809 Page: 7 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nMr. Young’s property rights,” (2) “Dickie Stevens had been given the authority\\nby the Board to take the action he took with respect to Mr. Young’s property,”\\nor (3) “The Board ratified Dickie Stevens’ actions after the fact.” The Board\\nobjects to both the second and third options.\\n\\n The Board contends that the second option erroneously permitted the\\njury to decide whether the Board gave Stevens final policymaking authority.\\nThat, the Board insists, was a question of law for the court, not a fact question\\nfor the jury. Even assuming that the court erred in allowing the jury to deter-\\nmine whether Stevens was a policymaker, there was legally sufficient evidence\\nfor a reasonable jury to hold the Board liable on a ratification theory, as we\\nhave explained. Thus, “any injury resulting from the erroneous instruction is\\nharmless.” Eastman Chem. Co., 775 F.3d at 240 (quoting Rogers v. Eagle\\nOffshore Drilling Servs., Inc., 764 F.3d 300, 303 (5th Cir. 1985)).\\n\\n Regarding the third option, the Board contends that Jury Instruction 4\\nincorrectly stated the law on ratification because it “did not require Young to\\nprove the existence of an unconstitutional policy.” The Board continues that\\nthe ratification theory requires a plaintiff to prove a separate violation of an\\nofficial policy or custom, not just that the policymaker ratified a subordinate’s\\naction. But that misstates the ratification theory. Showing that a policymaker\\nratified the actions of a subordinate is one way of making out a § 1983 claim\\nagainst a county or municipality; it is not an additional factor that must be\\nestablished. 5\\n\\n 2.\\n The Board claims that Jury Instruction 5 wrongly told the jury that\\n\\n\\n 5 See, e.g., Culbertson, 790 F.3d at 621 (“If a final policymaker approves a subordin-\\nate’s recommendation and also the subordinate’s reasoning, that approval is considered a\\nratification chargeable to the municipality.”).\\n 7\\n\\f Case: 18-60618 Document: 00515006809 Page: 8 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nYoung had to prove “that he was deprived of his property rights in an arbitrary\\nand capricious manner.” The Board maintains that the correct standard of\\nliability was one of “deliberate indifference.”\\n\\n The Board fails to show that this instruction “creates substantial and\\nineradicable doubt whether the jury has been properly guided in its delibera-\\ntions.” Mijalis, 15 F.3d at 1318 (internal quotation marks and citation omit-\\nted). The deliberate-indifference standard typically applies when a govern-\\nmental entity failed to act. 6 The arbitrary-and-capricious standard, however,\\ngenerally applies to action taken by a governmental entity, as here. 7\\n\\n In any event, the district court ultimately instructed the jury on deliber-\\nate indifference. Because juries are presumed to follow instructions, Hollis v.\\nProvident Life & Accident Ins. Co., 259 F.3d 410, 417 (5th Cir. 2001), we con-\\nclude that the jury found the Board liable under both an arbitrary-and-caprici-\\nous standard and a willful-indifference standard. Accordingly, “the challenged\\ninstruction could not have affected the outcome of the case,” Mijalis, 15 F.3d\\nat 1318, and there is no reversible error.\\n\\n\\n\\n\\n 6 See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998) (noting that\\nthe standard governs “claims under § 1983 alleging that a municipality’s actions in failing to\\nprevent a deprivation of federal rights was the cause of the violation”). See also, e.g., City of\\nCanton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality’s failure to train its\\nemployees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its in-\\nhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is\\nactionable under § 1983.”). Not surprisingly, the cases the Board cites on appeal to contend\\nthat deliberate indifference was the proper standard all concern a government entity’s failure\\nto act. See, e.g., Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Brown v.\\nBryan Cty., 219 F.3d 450, 462 (5th Cir. 2000).\\n 7 See, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 217 (1985) (considering\\nwhether the university’s dismissal of a student was arbitrary and capricious such that it\\ncould support a claim under § 1983); Yur-Mar, L.L.C. v. Jefferson Par. Council, 451 F. App’x\\n397, 401 (5th Cir. 2011) (per curiam) (applying arbitrary-and-capricious standard in chal-\\nlenge to parish’s zoning regulations).\\n 8\\n\\f Case: 18-60618 Document: 00515006809 Page: 9 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\n 3.\\n The Board contends that the district court erred in refusing to give the\\nBoard’s proffered Jury Instruction 8, which would have told the jury that\\nYoung needed to prove an official policy or widespread custom. A party chal-\\nlenging the refusal to give a proffered jury instruction “must show as a thresh-\\nold matter that the proposed instruction correctly stated the law.” Id. As we\\nhave explained, the Board’s view of the ratification theory of liability is erron-\\neous: Young did not need to demonstrate that the Board acted according to an\\nofficial policy or custom. The rejection of Jury Instruction 8 does not warrant\\na new trial.\\n\\n The judgment is AFFIRMED.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409309/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4632056/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Carl YOUNG, Plaintiff-Appellee, v. BOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-60618 Document: 00515006809 Page: 1 Date Filed: 06/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-60618 June 21, 2019\n Lyle W. Cayce\n Clerk\n\n\nCARL YOUNG,\n\n Plaintiff–Appellee,\n\nversus\n\nBOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Mississippi\n\n\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Carl Young sued the Board of Supervisors of Humphreys County, Missis-\nsippi (“the Board”), and its president under 42 U.S.C. § 1983, contending that\nthey had unlawfully deprived him of the use of several of his properties. A jury\nreturned a verdict for Young, and the district court denied the Board’s motion\nfor judgment as a matter of law (“JMOL”) or a new trial. Finding no reversible\nerror, we affirm.\n\f Case: 18-60618 Document: 00515006809 Page: 2 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\n I.\n Young bought three empty houses on September 2, 2015, and retained a\nlocal contractor eight days later to clean and renovate them. On September 18,\nCharles Edwards, the County Building Inspector, posted a condemnation\nnotice on one of the properties, declaring each of them unsafe and ordering\n“[a]ll persons . . . to keep out as long as this notice remains posted.” Nonethe-\nless, according to Edwards, Young’s properties complied with county rules and\nordinances and state law at the time he posted the notice. In fact, Edwards\ntestified that he would not have posted the condemnation notice except that\nR.D. “Dickie” Stevens—the president of the Board 1—had instructed him to do\nso. 2\n\n On October 5, the Board met and unanimously voted to hold a hearing\non November 17 for the condemnation of Young’s properties. 3 The Board main-\ntains that the term “condemnation” in its October meeting minutes was “a cler-\nical error.” It further avers that it was not trying to condemn Young’s proper-\nties but was attempting to give Young notice that he needed to clean them up.\nThe Board separately stipulated, however, that it “speaks through its Min-\nutes.” In any event, the Board instructed its attorney to send Young a letter\ntelling him to remove, by November 17, debris left by the previous owners.\nWillie Bailey, the Board’s attorney, sent Young a letter on October 13, explain-\ning that the Board had voted to hold a hearing on November 17 “to determine\n\n\n 1 The Board is a five-person body that governs Humphreys County.\n Stevens disputed that narrative at trial, insisting that he had told Edwards to put\n 2\n\nup a “cease and desist” sign informing all persons to stop entering the properties and taking\nitems from the houses.\n The meeting minutes describe that vote as follows: “Supervisor Broomfield moved\n 3\n\nand Supervisor Brown seconded the motion setting a hearing on November 17, 2015[,] for\nowner of property in North Gate and Griffin Circle for condemnation of property.” (Capitali-\nzation omitted and emphasis added.) The Board members passed the motion by a 5–0 vote.\n 2\n\f Case: 18-60618 Document: 00515006809 Page: 3 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\nwhether the property . . . [was] in such a state of uncleanliness as to be a men-\nace to the public health, safety and welfare of the community.”\n\n Young appeared at the November meeting and asked for a continuance\nto obtain counsel. The parties continued the hearing until December 7. Young\nobtained counsel, who informed the Board a few days before the rescheduled\nhearing of Young’s intent to sue the Board. The Board, in turn, told Young\nthat it would not hold the hearing and was turning the situation over to its\ninsurance company.\n\n The Board never conducted a condemnation hearing, and neither Stev-\nens nor any other Board member instructed Edwards to remove the condem-\nnation notice from Young’s property. The notice remained in effect for over two\nyears until the Board sent Young a letter on February 12, 2018, telling him\nthat he could enter his properties and start repairs.\n\n II.\n Young sued the Board and Stevens, in his individual and official capaci-\nties, in state court, seeking civil damages under § 1983. Young alleged that\nStevens, acting under color of state law, had violated his Fifth and Fourteenth\nAmendment rights by instructing Edwards to post the condemnation notice\nwithout a legal basis. Young averred that the Board was liable also because it\nhad ratified Stevens’s actions during the October 2015 meeting by unani-\nmously voting to continue condemnation proceedings.\n\n Defendants removed, and the district court dismissed the claims against\nStevens but allowed the claims against the Board to proceed to trial. The sole\nissue was whether the Board had ratified Stevens’s actions, meaning that it\ncould be held liable under § 1983. The Board unsuccessfully moved for JMOL\nat the end of Young’s case-in-chief. The Board renewed its motion after its\n\n 3\n\f Case: 18-60618 Document: 00515006809 Page: 4 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\ncase-in-chief, and the court again denied it. The jury returned a verdict for\nYoung, awarding $25,000 in damages. The court entered a final judgment for\n$43,261.57 in damages, taxes, fees, and litigation expenses. The Board timely\nmoved for a JMOL under Federal Rule of Civil Procedure 50(b) or, in the alter-\nnative, a new trial. The court denied the motion, and the Board appealed.\n\n III.\n A.\n The Board contends that it was entitled to a JMOL because Young failed\nto make out a § 1983 claim under a theory of ratification. “We review de novo\nthe district court’s denial of a motion for [JMOL], applying the same standard\nas the district court.” Seibert v. Jackson Cty., 851 F.3d 430, 434 (5th Cir. 2017)\n(quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008)). “A JMOL is\nappropriate when ‘a reasonable jury would not have a legally sufficient eviden-\ntiary basis to find for the [non-moving] party on that issue.’” Id. (quoting FED.\nR. CIV. P. 50(a)). “When a case is tried to a jury, a motion for [JMOL] ‘is a\nchallenge to the legal sufficiency of the evidence supporting the jury’s verdict.’”\nCowart v. Erwin, 837 F.3d 444, 450 (5th Cir. 2016) (quoting Heck v. Triche,\n775 F.3d 265, 272 (5th Cir. 2014)). Our review of the jury’s verdict is highly\ndeferential. “[W]e draw all reasonable inferences and resolve all credibility\ndeterminations in the light most favorable to the nonmoving party, and will\nuphold the verdict unless there is no legally sufficient evidentiary basis for a\nreasonable jury to find as the jury did.” Id. (internal quotation marks and\ncitation omitted).\n\n “To establish municipal [or county] liability under § 1983, a plaintiff\nmust show that (1) an official policy (2) promulgated by the municipal policy-\nmaker (3) was the moving force behind the violation of a constitutional right.”\nPeterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009); see also FIFTH\n\n 4\n\f Case: 18-60618 Document: 00515006809 Page: 5 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\nCIRCUIT PATTERN JURY INSTRUCTIONS (Civil Rights—42 U.S.C. § 1983) 10.5\n(2016). One way of establishing liability is to show that a policymaker ratified\nthe acts of a subordinate. “If the authorized policymakers approve a subordin-\nate’s decision and the basis for it, their ratification would be chargeable to the\nmunicipality because their decision is final.” City of St. Louis v. Praprotnik,\n485 U.S. 112, 127 (1988). We have “limited the theory of ratification to extreme\nfactual situations.” Peterson, 588 F.3d at 848 (internal quotation marks and\ncitation omitted). “[U]nless the subordinate’s actions are sufficiently\nextreme—for instance, an obvious violation of clearly established law—a\npolicymaker’s ratification . . . is insufficient to establish an official policy or\ncustom.” World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d\n747, 755 (5th Cir. 2009). 4\n\n There was legally sufficient evidence for a reasonable jury to conclude\nthat the Board ratified the unlawful initiation of condemnation proceedings.\nDrawing all inferences in the light most favorable to Young, testimony at trial\nshowed that Stevens had directed Edwards to post the condemnation notice,\neven though Young’s properties were compliant with state and county law. The\nBoard ratified that action at its next meeting by unanimously voting to proceed\nwith condemnation, and the notice was not withdrawn for over two years.\nThose facts are “sufficiently extreme,” id., to support a finding that the Board\napproved both Stevens’s direction to post the condemnation notice and the\n\n\n\n 4 The Board suggests that we have limited the ratification theory almost exclusively\nto cases involving a “use of excessive force that resulted in bodily injuries or death.” To the\ncontrary, we have regularly applied ratification to economic injuries. See Culbertson v. Lykos,\n790 F.3d 608, 621–22 (5th Cir. 2015) (finding that plaintiffs alleged sufficient facts to allow\ntheir challenge to the loss of their jobs to proceed on a ratification theory). The Board also\nwrongly maintains that a ratification theory of liability is appropriate only where the injury\nis particularly severe. But World Wide Street Preachers Fellowship, 591 F.3d at 755, indi-\ncates that the theory applies where a policymaker ratifies, for example, “an obvious violation\nof clearly established law.”\n 5\n\f Case: 18-60618 Document: 00515006809 Page: 6 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\nunderlying implication that the properties were condemnable.\n\n The Board counters that it is “undisputed” that the Board never voted to\napprove Stevens’s direction to Edwards to post the condemnation notice on\nYoung’s property, nor did it vote to approve the basis for Stevens’s decision.\nThough the Board did not specifically vote to ratify Stevens’s action or the rea-\nsons supporting it, taking the facts in the light most favorable to Young, the\nBoard’s unanimous vote to proceed with condemnation is legally sufficient evi-\ndence for a reasonable jury to conclude that the Board ratified Stevens’s deci-\nsion to have Edwards post the notice.\n\n B.\n The Board challenges the verdict based on three alleged errors in the\njury instructions. “We review challenges to jury instructions for abuse of dis-\ncretion and afford the trial court great latitude in the framing and structure of\njury instructions.” Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 240\n(5th Cir. 2014). To show reversible error, the party challenging the instruction\n“must demonstrate that the charge as a whole creates ‘substantial and ineradi-\ncable doubt whether the jury has been properly guided in its deliberations.’”\nF.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994) (quoting Bender v. Brum-\nley, 1 F.3d 271, 276 (5th Cir. 1993)). Even if we find that the “instructions were\nerroneous, we will not reverse if we determine, based upon the entire record,\nthat the challenged instruction could not have affected the outcome of the\ncase.” Id.\n\n 1.\n The Board takes issue with Jury Instruction 4, which told the jury that\nit could find the Board liable if it found, by a preponderance of the evidence,\none of three things: (1) “The Board of Supervisors authorized a violation of\n\n 6\n\f Case: 18-60618 Document: 00515006809 Page: 7 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\nMr. Young’s property rights,” (2) “Dickie Stevens had been given the authority\nby the Board to take the action he took with respect to Mr. Young’s property,”\nor (3) “The Board ratified Dickie Stevens’ actions after the fact.” The Board\nobjects to both the second and third options.\n\n The Board contends that the second option erroneously permitted the\njury to decide whether the Board gave Stevens final policymaking authority.\nThat, the Board insists, was a question of law for the court, not a fact question\nfor the jury. Even assuming that the court erred in allowing the jury to deter-\nmine whether Stevens was a policymaker, there was legally sufficient evidence\nfor a reasonable jury to hold the Board liable on a ratification theory, as we\nhave explained. Thus, “any injury resulting from the erroneous instruction is\nharmless.” Eastman Chem. Co., 775 F.3d at 240 (quoting Rogers v. Eagle\nOffshore Drilling Servs., Inc., 764 F.3d 300, 303 (5th Cir. 1985)).\n\n Regarding the third option, the Board contends that Jury Instruction 4\nincorrectly stated the law on ratification because it “did not require Young to\nprove the existence of an unconstitutional policy.” The Board continues that\nthe ratification theory requires a plaintiff to prove a separate violation of an\nofficial policy or custom, not just that the policymaker ratified a subordinate’s\naction. But that misstates the ratification theory. Showing that a policymaker\nratified the actions of a subordinate is one way of making out a § 1983 claim\nagainst a county or municipality; it is not an additional factor that must be\nestablished. 5\n\n 2.\n The Board claims that Jury Instruction 5 wrongly told the jury that\n\n\n 5 See, e.g., Culbertson, 790 F.3d at 621 (“If a final policymaker approves a subordin-\nate’s recommendation and also the subordinate’s reasoning, that approval is considered a\nratification chargeable to the municipality.”).\n 7\n\f Case: 18-60618 Document: 00515006809 Page: 8 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\nYoung had to prove “that he was deprived of his property rights in an arbitrary\nand capricious manner.” The Board maintains that the correct standard of\nliability was one of “deliberate indifference.”\n\n The Board fails to show that this instruction “creates substantial and\nineradicable doubt whether the jury has been properly guided in its delibera-\ntions.” Mijalis, 15 F.3d at 1318 (internal quotation marks and citation omit-\nted). The deliberate-indifference standard typically applies when a govern-\nmental entity failed to act. 6 The arbitrary-and-capricious standard, however,\ngenerally applies to action taken by a governmental entity, as here. 7\n\n In any event, the district court ultimately instructed the jury on deliber-\nate indifference. Because juries are presumed to follow instructions, Hollis v.\nProvident Life & Accident Ins. Co., 259 F.3d 410, 417 (5th Cir. 2001), we con-\nclude that the jury found the Board liable under both an arbitrary-and-caprici-\nous standard and a willful-indifference standard. Accordingly, “the challenged\ninstruction could not have affected the outcome of the case,” Mijalis, 15 F.3d\nat 1318, and there is no reversible error.\n\n\n\n\n 6 See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998) (noting that\nthe standard governs “claims under § 1983 alleging that a municipality’s actions in failing to\nprevent a deprivation of federal rights was the cause of the violation”). See also, e.g., City of\nCanton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality’s failure to train its\nemployees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its in-\nhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is\nactionable under § 1983.”). Not surprisingly, the cases the Board cites on appeal to contend\nthat deliberate indifference was the proper standard all concern a government entity’s failure\nto act. See, e.g., Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Brown v.\nBryan Cty., 219 F.3d 450, 462 (5th Cir. 2000).\n 7 See, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 217 (1985) (considering\nwhether the university’s dismissal of a student was arbitrary and capricious such that it\ncould support a claim under § 1983); Yur-Mar, L.L.C. v. Jefferson Par. Council, 451 F. App’x\n397, 401 (5th Cir. 2011) (per curiam) (applying arbitrary-and-capricious standard in chal-\nlenge to parish’s zoning regulations).\n 8\n\f Case: 18-60618 Document: 00515006809 Page: 9 Date Filed: 06/21/2019\n\n\n\n No. 18-60618\n 3.\n The Board contends that the district court erred in refusing to give the\nBoard’s proffered Jury Instruction 8, which would have told the jury that\nYoung needed to prove an official policy or widespread custom. A party chal-\nlenging the refusal to give a proffered jury instruction “must show as a thresh-\nold matter that the proposed instruction correctly stated the law.” Id. As we\nhave explained, the Board’s view of the ratification theory of liability is erron-\neous: Young did not need to demonstrate that the Board acted according to an\nofficial policy or custom. The rejection of Jury Instruction 8 does not warrant\na new trial.\n\n The judgment is AFFIRMED.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Carl YOUNG, Plaintiff-Appellee, v. BOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-60618 Document: 00515006809 Page: 1 Date Filed: 06/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-60618 June 21, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nCARL YOUNG,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nBOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Mississippi\\n\\n\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Carl Young sued the Board of Supervisors of Humphreys County, Missis-\\nsippi (“the Board”), and its president under 42 U.S.C. § 1983, contending that\\nthey had unlawfully deprived him of the use of several of his properties. A jury\\nreturned a verdict for Young, and the district court denied the Board’s motion\\nfor judgment as a matter of law (“JMOL”) or a new trial. Finding no reversible\\nerror, we affirm.\\n\\f Case: 18-60618 Document: 00515006809 Page: 2 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\n I.\\n Young bought three empty houses on September 2, 2015, and retained a\\nlocal contractor eight days later to clean and renovate them. On September 18,\\nCharles Edwards, the County Building Inspector, posted a condemnation\\nnotice on one of the properties, declaring each of them unsafe and ordering\\n“[a]ll persons . . . to keep out as long as this notice remains posted.” Nonethe-\\nless, according to Edwards, Young’s properties complied with county rules and\\nordinances and state law at the time he posted the notice. In fact, Edwards\\ntestified that he would not have posted the condemnation notice except that\\nR.D. “Dickie” Stevens—the president of the Board 1—had instructed him to do\\nso. 2\\n\\n On October 5, the Board met and unanimously voted to hold a hearing\\non November 17 for the condemnation of Young’s properties. 3 The Board main-\\ntains that the term “condemnation” in its October meeting minutes was “a cler-\\nical error.” It further avers that it was not trying to condemn Young’s proper-\\nties but was attempting to give Young notice that he needed to clean them up.\\nThe Board separately stipulated, however, that it “speaks through its Min-\\nutes.” In any event, the Board instructed its attorney to send Young a letter\\ntelling him to remove, by November 17, debris left by the previous owners.\\nWillie Bailey, the Board’s attorney, sent Young a letter on October 13, explain-\\ning that the Board had voted to hold a hearing on November 17 “to determine\\n\\n\\n 1 The Board is a five-person body that governs Humphreys County.\\n Stevens disputed that narrative at trial, insisting that he had told Edwards to put\\n 2\\n\\nup a “cease and desist” sign informing all persons to stop entering the properties and taking\\nitems from the houses.\\n The meeting minutes describe that vote as follows: “Supervisor Broomfield moved\\n 3\\n\\nand Supervisor Brown seconded the motion setting a hearing on November 17, 2015[,] for\\nowner of property in North Gate and Griffin Circle for condemnation of property.” (Capitali-\\nzation omitted and emphasis added.) The Board members passed the motion by a 5–0 vote.\\n 2\\n\\f Case: 18-60618 Document: 00515006809 Page: 3 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nwhether the property . . . [was] in such a state of uncleanliness as to be a men-\\nace to the public health, safety and welfare of the community.”\\n\\n Young appeared at the November meeting and asked for a continuance\\nto obtain counsel. The parties continued the hearing until December 7. Young\\nobtained counsel, who informed the Board a few days before the rescheduled\\nhearing of Young’s intent to sue the Board. The Board, in turn, told Young\\nthat it would not hold the hearing and was turning the situation over to its\\ninsurance company.\\n\\n The Board never conducted a condemnation hearing, and neither Stev-\\nens nor any other Board member instructed Edwards to remove the condem-\\nnation notice from Young’s property. The notice remained in effect for over two\\nyears until the Board sent Young a letter on February 12, 2018, telling him\\nthat he could enter his properties and start repairs.\\n\\n II.\\n Young sued the Board and Stevens, in his individual and official capaci-\\nties, in state court, seeking civil damages under § 1983. Young alleged that\\nStevens, acting under color of state law, had violated his Fifth and Fourteenth\\nAmendment rights by instructing Edwards to post the condemnation notice\\nwithout a legal basis. Young averred that the Board was liable also because it\\nhad ratified Stevens’s actions during the October 2015 meeting by unani-\\nmously voting to continue condemnation proceedings.\\n\\n Defendants removed, and the district court dismissed the claims against\\nStevens but allowed the claims against the Board to proceed to trial. The sole\\nissue was whether the Board had ratified Stevens’s actions, meaning that it\\ncould be held liable under § 1983. The Board unsuccessfully moved for JMOL\\nat the end of Young’s case-in-chief. The Board renewed its motion after its\\n\\n 3\\n\\f Case: 18-60618 Document: 00515006809 Page: 4 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\ncase-in-chief, and the court again denied it. The jury returned a verdict for\\nYoung, awarding $25,000 in damages. The court entered a final judgment for\\n$43,261.57 in damages, taxes, fees, and litigation expenses. The Board timely\\nmoved for a JMOL under Federal Rule of Civil Procedure 50(b) or, in the alter-\\nnative, a new trial. The court denied the motion, and the Board appealed.\\n\\n III.\\n A.\\n The Board contends that it was entitled to a JMOL because Young failed\\nto make out a § 1983 claim under a theory of ratification. “We review de novo\\nthe district court’s denial of a motion for [JMOL], applying the same standard\\nas the district court.” Seibert v. Jackson Cty., 851 F.3d 430, 434 (5th Cir. 2017)\\n(quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008)). “A JMOL is\\nappropriate when ‘a reasonable jury would not have a legally sufficient eviden-\\ntiary basis to find for the [non-moving] party on that issue.’” Id. (quoting FED.\\nR. CIV. P. 50(a)). “When a case is tried to a jury, a motion for [JMOL] ‘is a\\nchallenge to the legal sufficiency of the evidence supporting the jury’s verdict.’”\\nCowart v. Erwin, 837 F.3d 444, 450 (5th Cir. 2016) (quoting Heck v. Triche,\\n775 F.3d 265, 272 (5th Cir. 2014)). Our review of the jury’s verdict is highly\\ndeferential. “[W]e draw all reasonable inferences and resolve all credibility\\ndeterminations in the light most favorable to the nonmoving party, and will\\nuphold the verdict unless there is no legally sufficient evidentiary basis for a\\nreasonable jury to find as the jury did.” Id. (internal quotation marks and\\ncitation omitted).\\n\\n “To establish municipal [or county] liability under § 1983, a plaintiff\\nmust show that (1) an official policy (2) promulgated by the municipal policy-\\nmaker (3) was the moving force behind the violation of a constitutional right.”\\nPeterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009); see also FIFTH\\n\\n 4\\n\\f Case: 18-60618 Document: 00515006809 Page: 5 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nCIRCUIT PATTERN JURY INSTRUCTIONS (Civil Rights—42 U.S.C. § 1983) 10.5\\n(2016). One way of establishing liability is to show that a policymaker ratified\\nthe acts of a subordinate. “If the authorized policymakers approve a subordin-\\nate’s decision and the basis for it, their ratification would be chargeable to the\\nmunicipality because their decision is final.” City of St. Louis v. Praprotnik,\\n485 U.S. 112, 127 (1988). We have “limited the theory of ratification to extreme\\nfactual situations.” Peterson, 588 F.3d at 848 (internal quotation marks and\\ncitation omitted). “[U]nless the subordinate’s actions are sufficiently\\nextreme—for instance, an obvious violation of clearly established law—a\\npolicymaker’s ratification . . . is insufficient to establish an official policy or\\ncustom.” World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d\\n747, 755 (5th Cir. 2009). 4\\n\\n There was legally sufficient evidence for a reasonable jury to conclude\\nthat the Board ratified the unlawful initiation of condemnation proceedings.\\nDrawing all inferences in the light most favorable to Young, testimony at trial\\nshowed that Stevens had directed Edwards to post the condemnation notice,\\neven though Young’s properties were compliant with state and county law. The\\nBoard ratified that action at its next meeting by unanimously voting to proceed\\nwith condemnation, and the notice was not withdrawn for over two years.\\nThose facts are “sufficiently extreme,” id., to support a finding that the Board\\napproved both Stevens’s direction to post the condemnation notice and the\\n\\n\\n\\n 4 The Board suggests that we have limited the ratification theory almost exclusively\\nto cases involving a “use of excessive force that resulted in bodily injuries or death.” To the\\ncontrary, we have regularly applied ratification to economic injuries. See Culbertson v. Lykos,\\n790 F.3d 608, 621–22 (5th Cir. 2015) (finding that plaintiffs alleged sufficient facts to allow\\ntheir challenge to the loss of their jobs to proceed on a ratification theory). The Board also\\nwrongly maintains that a ratification theory of liability is appropriate only where the injury\\nis particularly severe. But World Wide Street Preachers Fellowship, 591 F.3d at 755, indi-\\ncates that the theory applies where a policymaker ratifies, for example, “an obvious violation\\nof clearly established law.”\\n 5\\n\\f Case: 18-60618 Document: 00515006809 Page: 6 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nunderlying implication that the properties were condemnable.\\n\\n The Board counters that it is “undisputed” that the Board never voted to\\napprove Stevens’s direction to Edwards to post the condemnation notice on\\nYoung’s property, nor did it vote to approve the basis for Stevens’s decision.\\nThough the Board did not specifically vote to ratify Stevens’s action or the rea-\\nsons supporting it, taking the facts in the light most favorable to Young, the\\nBoard’s unanimous vote to proceed with condemnation is legally sufficient evi-\\ndence for a reasonable jury to conclude that the Board ratified Stevens’s deci-\\nsion to have Edwards post the notice.\\n\\n B.\\n The Board challenges the verdict based on three alleged errors in the\\njury instructions. “We review challenges to jury instructions for abuse of dis-\\ncretion and afford the trial court great latitude in the framing and structure of\\njury instructions.” Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 240\\n(5th Cir. 2014). To show reversible error, the party challenging the instruction\\n“must demonstrate that the charge as a whole creates ‘substantial and ineradi-\\ncable doubt whether the jury has been properly guided in its deliberations.’”\\nF.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994) (quoting Bender v. Brum-\\nley, 1 F.3d 271, 276 (5th Cir. 1993)). Even if we find that the “instructions were\\nerroneous, we will not reverse if we determine, based upon the entire record,\\nthat the challenged instruction could not have affected the outcome of the\\ncase.” Id.\\n\\n 1.\\n The Board takes issue with Jury Instruction 4, which told the jury that\\nit could find the Board liable if it found, by a preponderance of the evidence,\\none of three things: (1) “The Board of Supervisors authorized a violation of\\n\\n 6\\n\\f Case: 18-60618 Document: 00515006809 Page: 7 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nMr. Young’s property rights,” (2) “Dickie Stevens had been given the authority\\nby the Board to take the action he took with respect to Mr. Young’s property,”\\nor (3) “The Board ratified Dickie Stevens’ actions after the fact.” The Board\\nobjects to both the second and third options.\\n\\n The Board contends that the second option erroneously permitted the\\njury to decide whether the Board gave Stevens final policymaking authority.\\nThat, the Board insists, was a question of law for the court, not a fact question\\nfor the jury. Even assuming that the court erred in allowing the jury to deter-\\nmine whether Stevens was a policymaker, there was legally sufficient evidence\\nfor a reasonable jury to hold the Board liable on a ratification theory, as we\\nhave explained. Thus, “any injury resulting from the erroneous instruction is\\nharmless.” Eastman Chem. Co., 775 F.3d at 240 (quoting Rogers v. Eagle\\nOffshore Drilling Servs., Inc., 764 F.3d 300, 303 (5th Cir. 1985)).\\n\\n Regarding the third option, the Board contends that Jury Instruction 4\\nincorrectly stated the law on ratification because it “did not require Young to\\nprove the existence of an unconstitutional policy.” The Board continues that\\nthe ratification theory requires a plaintiff to prove a separate violation of an\\nofficial policy or custom, not just that the policymaker ratified a subordinate’s\\naction. But that misstates the ratification theory. Showing that a policymaker\\nratified the actions of a subordinate is one way of making out a § 1983 claim\\nagainst a county or municipality; it is not an additional factor that must be\\nestablished. 5\\n\\n 2.\\n The Board claims that Jury Instruction 5 wrongly told the jury that\\n\\n\\n 5 See, e.g., Culbertson, 790 F.3d at 621 (“If a final policymaker approves a subordin-\\nate’s recommendation and also the subordinate’s reasoning, that approval is considered a\\nratification chargeable to the municipality.”).\\n 7\\n\\f Case: 18-60618 Document: 00515006809 Page: 8 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\nYoung had to prove “that he was deprived of his property rights in an arbitrary\\nand capricious manner.” The Board maintains that the correct standard of\\nliability was one of “deliberate indifference.”\\n\\n The Board fails to show that this instruction “creates substantial and\\nineradicable doubt whether the jury has been properly guided in its delibera-\\ntions.” Mijalis, 15 F.3d at 1318 (internal quotation marks and citation omit-\\nted). The deliberate-indifference standard typically applies when a govern-\\nmental entity failed to act. 6 The arbitrary-and-capricious standard, however,\\ngenerally applies to action taken by a governmental entity, as here. 7\\n\\n In any event, the district court ultimately instructed the jury on deliber-\\nate indifference. Because juries are presumed to follow instructions, Hollis v.\\nProvident Life & Accident Ins. Co., 259 F.3d 410, 417 (5th Cir. 2001), we con-\\nclude that the jury found the Board liable under both an arbitrary-and-caprici-\\nous standard and a willful-indifference standard. Accordingly, “the challenged\\ninstruction could not have affected the outcome of the case,” Mijalis, 15 F.3d\\nat 1318, and there is no reversible error.\\n\\n\\n\\n\\n 6 See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998) (noting that\\nthe standard governs “claims under § 1983 alleging that a municipality’s actions in failing to\\nprevent a deprivation of federal rights was the cause of the violation”). See also, e.g., City of\\nCanton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality’s failure to train its\\nemployees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its in-\\nhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is\\nactionable under § 1983.”). Not surprisingly, the cases the Board cites on appeal to contend\\nthat deliberate indifference was the proper standard all concern a government entity’s failure\\nto act. See, e.g., Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Brown v.\\nBryan Cty., 219 F.3d 450, 462 (5th Cir. 2000).\\n 7 See, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 217 (1985) (considering\\nwhether the university’s dismissal of a student was arbitrary and capricious such that it\\ncould support a claim under § 1983); Yur-Mar, L.L.C. v. Jefferson Par. Council, 451 F. App’x\\n397, 401 (5th Cir. 2011) (per curiam) (applying arbitrary-and-capricious standard in chal-\\nlenge to parish’s zoning regulations).\\n 8\\n\\f Case: 18-60618 Document: 00515006809 Page: 9 Date Filed: 06/21/2019\\n\\n\\n\\n No. 18-60618\\n 3.\\n The Board contends that the district court erred in refusing to give the\\nBoard’s proffered Jury Instruction 8, which would have told the jury that\\nYoung needed to prove an official policy or widespread custom. A party chal-\\nlenging the refusal to give a proffered jury instruction “must show as a thresh-\\nold matter that the proposed instruction correctly stated the law.” Id. As we\\nhave explained, the Board’s view of the ratification theory of liability is erron-\\neous: Young did not need to demonstrate that the Board acted according to an\\nofficial policy or custom. The rejection of Jury Instruction 8 does not warrant\\na new trial.\\n\\n The judgment is AFFIRMED.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2470,"cells":{"id":{"kind":"number","value":4632876,"string":"4,632,876"},"name":{"kind":"string","value":"STEMCOR USA INCORPORATED, Plaintiff v. CIA SIDERURGICA DO PARA COSIPAR, Et Al., Defendants Daewoo International Corporation, Plaintiff - Appellant v. Thyssenkrupp Mannex Gmbh, Intervenor Plaintiff - Appellee v. America Metals Trading L.L.P., Et Al., Defendants"},"name_abbreviation":{"kind":"string","value":"Stemcor USA Inc. v. Cia Siderurgica Do Para Cosipar"},"decision_date":{"kind":"string","value":"2019-06-25"},"docket_number":{"kind":"string","value":"16-30984"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Graves, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES E. GRAVES, JR., Circuit Judge\", \"type\": \"010combined\", \"text\": \"Case: 16-30984 Document: 00515010237 Page: 1 Date Filed: 06/25/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-30984 June 25, 2019\\n Lyle W. Cayce\\nSTEMCOR USA INCORPORATED, Clerk\\n\\n\\n Plaintiff\\n\\nv.\\n\\nCIA SIDERURGICA DO PARA COSIPAR, ET AL.,\\n\\n Defendants\\n----------------------------------------------\\n\\nDAEWOO INTERNATIONAL CORPORATION,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nTHYSSENKRUPP MANNEX GMBH,\\n\\n Intervenor Plaintiff - Appellee\\n\\nv.\\n\\nAMERICA METALS TRADING L.L.P., ET AL.,\\n\\n Defendants\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\f Case: 16-30984 Document: 00515010237 Page: 2 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\n ON PETITION FOR REHEARING\\nBefore HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n On second rehearing of this matter, we certified to the Louisiana\\nSupreme Court the question of whether a suit seeking to compel arbitration is\\nan “action for a money judgment” under Louisiana’s non-resident attachment\\nstatute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica\\ndo Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme\\nCourt having now provided its answer, we conclude that Louisiana’s non-\\nresident attachment statute allows for attachment in aid of arbitration. Thus,\\nwe grant rehearing, withdraw our prior opinion, 895 F.3d 375 (5th Cir. 2018),\\nand substitute the following. We also VACATE the judgment of the district\\ncourt and REMAND.\\n I\\n This is a dispute between two creditors, each of which attached the same\\npig iron owned by America Metals Trading L.L.P. (“AMT”). Plaintiff–Appellant\\nDaewoo International Corp. (“Daewoo”) is a South Korean trading company.\\nIn May 2012, Daewoo entered into a series of contracts with AMT for the\\npurchase of pig iron, to be delivered in New Orleans. The sale contracts\\ncontained arbitration clauses. Although Daewoo made payments under the\\ncontracts, AMT never shipped the pig iron. Thyssenkrupp Mannex GMBH\\n(“TKM”) is a German company. Between June 2010 and February 2011, TKM\\nentered into six contracts to purchase pig iron from AMT. AMT never\\ndelivered. In response to the breach of contract, TKM and AMT negotiated a\\nsettlement, which required AMT to make quarterly payments to TKM. AMT\\ndid not pay.\\n\\n\\n 2\\n\\f Case: 16-30984 Document: 00515010237 Page: 3 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\n Daewoo sued AMT in the Eastern District of Louisiana, seeking an order\\ncompelling arbitration and an attachment of the pig iron on board a ship then-\\nanchored in New Orleans. Daewoo invoked both maritime attachment and the\\nLouisiana non-resident attachment statute, which allows attachments in aid\\nof any “action for a money judgment.” La. Code Civ. Proc. art. 3542. Citing\\nboth types of attachment, the district court granted Daewoo its attachment.\\nIntervenor-Appellee TKM later attached the same pig iron in Louisiana state\\ncourt and intervened in Daewoo’s federal action arguing that maritime\\njurisdiction was improper and Louisiana’s non-resident attachment statute\\nwas inapplicable.\\n The district court agreed with TKM and vacated Daewoo’s attachment.\\nSee Stemcor USA, Inc. v. Am. Metals Trading, LLP, 199 F. Supp. 3d 1102 (E.D.\\nLa. 2016). Specifically, the district court found that because Daewoo’s\\nunderlying suit sought to compel arbitration, it was not an “action for a money\\njudgment.” Thus, the district court found that Daewoo could not receive a non-\\nresident attachment writ. After Daewoo’s writ was dissolved, TKM’s state\\ncourt attachment became first in time and the district court transferred\\nproceeds from the parties’ agreed sale of the pig iron to state court. Daewoo\\nappealed the district court’s conclusion that its Louisiana non-resident\\nattachment writ was invalid. This court heard oral arguments, rendered a\\ndecision and reconsidered this matter on rehearing. See Stemcor USA Inc. v.\\nCia Siderurgica do Para Cosipar, 870 F.3d 370 (5th Cir. 2017), opinion\\nwithdrawn and superseded on reh’g, 895 F.3d 375 (5th Cir. 2018).\\n On second rehearing of this matter, we certified to the Louisiana\\nSupreme Court the question of whether a suit seeking to compel arbitration is\\nan “action for a money judgment” under Louisiana’s non-resident attachment\\nstatute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica\\n 3\\n\\f Case: 16-30984 Document: 00515010237 Page: 4 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\ndo Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme\\nCourt has now answered. See Stemcor USA Inc. v. Cia Siderurgica do Para\\nCosipar, --- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, (La. May 8, 2019).\\n\\n II\\n The district court found federal subject matter jurisdiction under the\\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards\\n(the “Convention”). We agree.\\n For a federal court to have jurisdiction under the Convention, two\\nrequirements must be met: (1) there must be an arbitration agreement or\\naward that falls under the Convention, and (2) the dispute must relate to that\\narbitration agreement. These requirements flow from the text of two sections\\nof the Convention. The explicit jurisdictional provision is Section 203, which\\ngives federal courts jurisdiction over all “action[s] or proceeding[s] falling\\nunder the Convention.” 9 U.S.C. § 203. “An arbitration agreement or arbitral\\naward arising out of a legal relationship, whether contractual or not, which is\\nconsidered as commercial, including a transaction, contract, or agreement\\ndescribed in section 2 of this title, falls under the Convention.” 9 U.S.C. § 202.\\nAccordingly, the first step for determining jurisdiction is deciding whether the\\n“arbitration agreement or award . . . falls under the Convention.” Id.\\n The next step, derived from Section 203, is to ask whether the “action or\\nproceeding”—as opposed to the arbitration agreement or award—falls under\\nthe Convention. The Convention’s removal statute offers guidance on what\\n“falling under” means because “[g]enerally, the removal jurisdiction of the\\nfederal district courts extends to cases over which they have original\\njurisdiction.” Francisco v. Stolt Achievement MT, 293 F.3d 270, 272 (5th Cir.\\n2002). Section 205 of the Convention allows for removal whenever “the subject\\n\\n 4\\n\\f Case: 16-30984 Document: 00515010237 Page: 5 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nmatter of an action or proceeding pending in a State court relates to an\\narbitration agreement or award falling under the Convention.” 9 U.S.C. § 205.\\nWe have read “relates to” to mean “has some connection, has some relation,\\n[or] has some reference” to. Acosta v. Master Maint. & Constr. Inc., 452 F.3d\\n373, 378–79 (5th Cir. 2006). And reading “falling under” to mean “relates to”\\nmakes sense grammatically. “Fall” means “to come within the limits, scope, or\\njurisdiction of something.” Merriam-Webster’s Collegiate Dictionary 418 (10th\\ned. 2002). Accordingly, the second step of the jurisdictional question is asking\\nwhether the “action or proceeding” “relates to” a covered arbitration agreement\\nor award. See Fred Parks, Inc. v. Total Compagnie, 981 F.2d 1255, 1992 WL\\n386999, at *1–2 (5th Cir. 1992) (unpublished) (treating the question of original\\nand removal jurisdiction under the Convention as identical).\\n This two-step jurisdictional inquiry is consistent with case law\\ninterpreting the Convention. See, e.g., BP Expl. Libya Ltd. v. ExxonMobil\\nLibya Ltd., 689 F.3d 481, 487 & n.4 (5th Cir. 2012) (finding jurisdiction where\\nthere was a covered arbitration agreement and the suit sought appointment of\\narbitrators); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir.\\n1990) (holding that jurisdiction over preliminary injunction in aid of covered\\narbitration was proper because the remedy sought did not try to “bypass\\narbitration”); Sunkyong Eng’g & Const. Co. v. Born, Inc., 149 F.3d 1174, 1998\\nWL 413537, at *5 (5th Cir. 1998) (unpublished) (“The FAA grants the United\\nStates district courts original federal question jurisdiction over arbitral awards\\nand agreements to arbitrate that fall within the Convention.”); Venconsul N.V.\\nv. Tim Int’l. N.V., 03Civ.5387(LTS)(MHD), 2003 WL 21804833, at *3 (S.D.N.Y.\\nAug. 6, 2003) (“Borden has been interpreted as recognizing a court’s power to\\nentertain requests for provisional remedies in aid of arbitration even where\\nthe request for remedies does not accompany a motion to compel arbitration or\\n 5\\n\\f Case: 16-30984 Document: 00515010237 Page: 6 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nto confirm an award.”).\\n Both jurisdictional requirements are met here. First, Daewoo’s\\narbitration agreements with AMT are covered by the Convention. For an\\narbitration agreement to be covered by the Convention, four requirements\\nmust be met: (1) there must be an agreement in writing to arbitrate the\\ndispute; (2) the agreement must provide for arbitration in the territory of a\\nConvention signatory; (3) the agreement to arbitrate must arise out of a\\ncommercial legal relationship; and (4) at least one party to the agreement must\\nnot be an American citizen. See Freudensprung v. Offshore Tech. Servs., Inc.,\\n379 F.3d 327, 339 (5th Cir. 2004); Sunkyong, 149 F.3d 1174, 1998 WL 413537,\\nat *5; Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co. (Pemex), 767\\nF.2d 1140, 1144–45 (5th Cir. 1985). All four requirements are met here:\\n • There is an agreement in writing to arbitrate Daewoo and AMT’s\\n dispute.\\n • That agreement provides for arbitration in New York, and the United\\n States is a signatory to the Convention.\\n • The agreement arises out of a commercial relationship between Daewoo\\n and AMT.\\n • Both Daewoo and AMT are not American citizens.\\n Second, this suit is related to the AMT arbitration agreements because\\nDaewoo seeks an attachment to facilitate the arbitration provided for in the\\nAMT agreements. See Borden, 919 F.2d at 826 (“[T]he desire for speedy\\ndecisions in arbitration is entirely consistent with a desire to make as effective\\nas possible recovery upon awards, after they have been made, which is what\\nprovisional remedies do.” (internal quotation marks and citation omitted)).\\nOur decision in E.A.S.T., Inc. of Stamford v. M/V Alaia, 876 F.2d 1168 (5th\\nCir. 1989), strongly counsels towards recognizing subject matter jurisdiction\\nbased on the Convention to issue provisional remedies in aid of arbitration.\\nThe court in E.A.S.T., albeit in the context of a maritime attachment, found\\n 6\\n\\f Case: 16-30984 Document: 00515010237 Page: 7 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nthat the “the arrest of a vessel prior to arbitration is not inconsistent with the\\nConvention.” Id. at 1173. And the court noted that the Convention “does not\\nexpressly forbid pre-arbitration attachment” and that pre-arbitration\\nattachment “may ‘serve[] . . . as a security device in aid of arbitration.’” Id.\\n(alteration in original) (quoting Atlas Chartering Servs., Inc. v. World Trade\\nGrp., Inc., 453 F. Supp. 861, 863 (S.D.N.Y. 1978)).\\n Indeed, E.A.S.T.’s reasoning mirrors the reasoning of courts that have\\nfound subject matter jurisdiction under the Convention to order state-law\\nprovisional remedies. Like the court in E.A.S.T., those courts reason that\\n“nothing in the Convention divests federal courts of jurisdiction to issue\\nprovisional remedies . . . such as an attachment, when appropriate in\\ninternational arbitrations.” Bahrain Telecomms. Co. v. Discoverytel, Inc., 476\\nF. Supp. 2d 176, 181 (D. Conn. 2007); see also China Nat’l Metal Prods.\\nImp./Exp. Co. v. Apex Dig., Inc., 155 F. Supp. 2d 1174, 1180 (C.D. Cal. 2001)\\n(“Rather than conflicting with the parties’ agreement to arbitrate, provisional\\nremedies such as attachment reinforce arbitration agreements by ensuring\\nthat assets from which an arbitration award would be satisfied are secured\\nwhile arbitration is pending.”). E.A.S.T. therefore strongly suggests that this\\ncourt recognizes jurisdiction under the Convention to issue state-law\\npreliminary remedies in aid of arbitration. 1\\n\\n\\n 1 And there are compelling reasons against reading jurisdiction under Section 203 as\\nnarrowly limited to the three remedies expressly allowed by the Convention (compelling\\narbitration and appointing arbitrators in Section 206 and confirming awards in Section 207).\\nNamely,\\n [n]othing in § 206 or § 207 limits the subject matter jurisdiction\\n of federal courts. These sections merely identify the remedies\\n that federal courts may grant, and do not speak in jurisdictional\\n terms or refer in any way to the jurisdiction of the district courts.\\n . . . To grant the remedies provided in those sections, the Court\\n must first determine that it has jurisdiction . . . .\\n 7\\n\\f Case: 16-30984 Document: 00515010237 Page: 8 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\n Applying E.A.S.T. and the cases that follow it, the Convention grants\\njurisdiction over Daewoo’s request for an attachment. Like the plaintiff in\\nE.A.S.T., Daewoo sought to attach the pig iron in order to facilitate arbitration\\nand increase its chance of recovering on any award. Because Daewoo sought\\nattachment to bring about a covered arbitration—that is, because Daewoo’s\\nsuit related to a covered arbitration agreement—this court has subject matter\\njurisdiction. 2\\n\\n III\\n The parties dispute whether Louisiana’s non-resident attachment\\nstatute allows for attachment in aid of arbitration. The district court held that\\nit does not.\\n As stated previously, we certified to the Louisiana Supreme Court the\\nquestion of whether a suit seeking to compel arbitration is an “action for a\\nmoney judgment” under Louisiana’s non-resident attachment statute, La.\\n\\n\\n\\n Treating §§ 206 and 207 as jurisdictional provisions confuses the\\n subject matter jurisdiction of federal courts with their remedial\\n authority. Although jurisdiction is a word of many . . . meanings,\\n there is a difference between the two. The nature of the relief\\n available after jurisdiction attaches is, of course, different from\\n the question whether there is jurisdiction to adjudicate the\\n controversy . . . . The breadth or narrowness of the relief which\\n may be granted under federal law . . . is a distinct question from\\n whether the court has jurisdiction over the parties and the\\n subject matter. Any error in granting or designing relief does\\n not go to the jurisdiction of the court.\\n\\nCRT Capital Grp. v. SLS Capital, S.A., 63 F. Supp. 3d 367, 374–75 (S.D.N.Y. 2014) (internal\\nquotations marks, citations, and alterations omitted). Simply put, the question of what\\nremedies are available in a Convention suit is distinct from the question of jurisdiction.\\n 2 We asked the parties to brief whether this court has personal jurisdiction under\\n\\nquasi in rem principles. We are satisfied that we have personal jurisdiction. See Republic\\nNat’l Bank of Miami v. United States, 506 U.S. 80, 88–89 (1992); Nassau Realty Co., Inc. v.\\nBrown, 332 So. 2d 206, 210 (La. 1976).\\n 8\\n\\f Case: 16-30984 Document: 00515010237 Page: 9 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nCode Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica do Para\\nCosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme Court\\naccepted the certified question and answered: “Louisiana Code of Civil\\nProcedure article 3542 allows for attachment in aid of arbitration if the origin\\nof the underlying arbitration claim is one pursuing money damages and the\\narbitral party has satisfied the statutory requirements necessary to obtain a\\nwrit of attachment.” See Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar,\\n--- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, *1 (La. May 8, 2019).\\n Louisiana’s attachment statute provides that “[a] writ of attachment\\nmay be obtained in any action for a money judgment, whether against a\\nresident or a nonresident, regardless of the nature, character, or origin of the\\nclaim, whether it is for a certain or uncertain amount, and whether it is\\nliquidated or unliquidated.” La. Code Civ. Proc. art. 3542. The underlying\\naction seeking to compel arbitration here is clearly an “action for a money\\njudgment” under Louisiana’s non-resident attachment statute. See La. Code\\nCiv. Proc. art. 3542. Daewoo has made it clear from the outset that it would\\nbe pursuing a money judgment. The “nature, character, or origin of the claim”\\njust happens to be arbitration. La. Code Civ. Proc. art. 3542. Thus, we\\nconclude that the district court erred in finding that the Louisiana non-\\nresident attachment statute was not available to Daewoo.\\n IV\\n For the above reasons, we VACATE and REMAND.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4410129/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4632876/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: STEMCOR USA INCORPORATED, Plaintiff v. CIA SIDERURGICA DO PARA COSIPAR, Et Al., Defendants Daewoo International Corporation, Plaintiff - Appellant v. Thyssenkrupp Mannex Gmbh, Intervenor Plaintiff - Appellee v. America Metals Trading L.L.P., Et Al., Defendants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-30984 Document: 00515010237 Page: 1 Date Filed: 06/25/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 16-30984 June 25, 2019\n Lyle W. Cayce\nSTEMCOR USA INCORPORATED, Clerk\n\n\n Plaintiff\n\nv.\n\nCIA SIDERURGICA DO PARA COSIPAR, ET AL.,\n\n Defendants\n----------------------------------------------\n\nDAEWOO INTERNATIONAL CORPORATION,\n\n Plaintiff - Appellant\n\nv.\n\nTHYSSENKRUPP MANNEX GMBH,\n\n Intervenor Plaintiff - Appellee\n\nv.\n\nAMERICA METALS TRADING L.L.P., ET AL.,\n\n Defendants\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\f Case: 16-30984 Document: 00515010237 Page: 2 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\n ON PETITION FOR REHEARING\nBefore HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.\nJAMES E. GRAVES, JR., Circuit Judge:\n On second rehearing of this matter, we certified to the Louisiana\nSupreme Court the question of whether a suit seeking to compel arbitration is\nan “action for a money judgment” under Louisiana’s non-resident attachment\nstatute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica\ndo Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme\nCourt having now provided its answer, we conclude that Louisiana’s non-\nresident attachment statute allows for attachment in aid of arbitration. Thus,\nwe grant rehearing, withdraw our prior opinion, 895 F.3d 375 (5th Cir. 2018),\nand substitute the following. We also VACATE the judgment of the district\ncourt and REMAND.\n I\n This is a dispute between two creditors, each of which attached the same\npig iron owned by America Metals Trading L.L.P. (“AMT”). Plaintiff–Appellant\nDaewoo International Corp. (“Daewoo”) is a South Korean trading company.\nIn May 2012, Daewoo entered into a series of contracts with AMT for the\npurchase of pig iron, to be delivered in New Orleans. The sale contracts\ncontained arbitration clauses. Although Daewoo made payments under the\ncontracts, AMT never shipped the pig iron. Thyssenkrupp Mannex GMBH\n(“TKM”) is a German company. Between June 2010 and February 2011, TKM\nentered into six contracts to purchase pig iron from AMT. AMT never\ndelivered. In response to the breach of contract, TKM and AMT negotiated a\nsettlement, which required AMT to make quarterly payments to TKM. AMT\ndid not pay.\n\n\n 2\n\f Case: 16-30984 Document: 00515010237 Page: 3 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\n Daewoo sued AMT in the Eastern District of Louisiana, seeking an order\ncompelling arbitration and an attachment of the pig iron on board a ship then-\nanchored in New Orleans. Daewoo invoked both maritime attachment and the\nLouisiana non-resident attachment statute, which allows attachments in aid\nof any “action for a money judgment.” La. Code Civ. Proc. art. 3542. Citing\nboth types of attachment, the district court granted Daewoo its attachment.\nIntervenor-Appellee TKM later attached the same pig iron in Louisiana state\ncourt and intervened in Daewoo’s federal action arguing that maritime\njurisdiction was improper and Louisiana’s non-resident attachment statute\nwas inapplicable.\n The district court agreed with TKM and vacated Daewoo’s attachment.\nSee Stemcor USA, Inc. v. Am. Metals Trading, LLP, 199 F. Supp. 3d 1102 (E.D.\nLa. 2016). Specifically, the district court found that because Daewoo’s\nunderlying suit sought to compel arbitration, it was not an “action for a money\njudgment.” Thus, the district court found that Daewoo could not receive a non-\nresident attachment writ. After Daewoo’s writ was dissolved, TKM’s state\ncourt attachment became first in time and the district court transferred\nproceeds from the parties’ agreed sale of the pig iron to state court. Daewoo\nappealed the district court’s conclusion that its Louisiana non-resident\nattachment writ was invalid. This court heard oral arguments, rendered a\ndecision and reconsidered this matter on rehearing. See Stemcor USA Inc. v.\nCia Siderurgica do Para Cosipar, 870 F.3d 370 (5th Cir. 2017), opinion\nwithdrawn and superseded on reh’g, 895 F.3d 375 (5th Cir. 2018).\n On second rehearing of this matter, we certified to the Louisiana\nSupreme Court the question of whether a suit seeking to compel arbitration is\nan “action for a money judgment” under Louisiana’s non-resident attachment\nstatute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica\n 3\n\f Case: 16-30984 Document: 00515010237 Page: 4 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\ndo Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme\nCourt has now answered. See Stemcor USA Inc. v. Cia Siderurgica do Para\nCosipar, --- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, (La. May 8, 2019).\n\n II\n The district court found federal subject matter jurisdiction under the\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards\n(the “Convention”). We agree.\n For a federal court to have jurisdiction under the Convention, two\nrequirements must be met: (1) there must be an arbitration agreement or\naward that falls under the Convention, and (2) the dispute must relate to that\narbitration agreement. These requirements flow from the text of two sections\nof the Convention. The explicit jurisdictional provision is Section 203, which\ngives federal courts jurisdiction over all “action[s] or proceeding[s] falling\nunder the Convention.” 9 U.S.C. § 203. “An arbitration agreement or arbitral\naward arising out of a legal relationship, whether contractual or not, which is\nconsidered as commercial, including a transaction, contract, or agreement\ndescribed in section 2 of this title, falls under the Convention.” 9 U.S.C. § 202.\nAccordingly, the first step for determining jurisdiction is deciding whether the\n“arbitration agreement or award . . . falls under the Convention.” Id.\n The next step, derived from Section 203, is to ask whether the “action or\nproceeding”—as opposed to the arbitration agreement or award—falls under\nthe Convention. The Convention’s removal statute offers guidance on what\n“falling under” means because “[g]enerally, the removal jurisdiction of the\nfederal district courts extends to cases over which they have original\njurisdiction.” Francisco v. Stolt Achievement MT, 293 F.3d 270, 272 (5th Cir.\n2002). Section 205 of the Convention allows for removal whenever “the subject\n\n 4\n\f Case: 16-30984 Document: 00515010237 Page: 5 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\nmatter of an action or proceeding pending in a State court relates to an\narbitration agreement or award falling under the Convention.” 9 U.S.C. § 205.\nWe have read “relates to” to mean “has some connection, has some relation,\n[or] has some reference” to. Acosta v. Master Maint. & Constr. Inc., 452 F.3d\n373, 378–79 (5th Cir. 2006). And reading “falling under” to mean “relates to”\nmakes sense grammatically. “Fall” means “to come within the limits, scope, or\njurisdiction of something.” Merriam-Webster’s Collegiate Dictionary 418 (10th\ned. 2002). Accordingly, the second step of the jurisdictional question is asking\nwhether the “action or proceeding” “relates to” a covered arbitration agreement\nor award. See Fred Parks, Inc. v. Total Compagnie, 981 F.2d 1255, 1992 WL\n386999, at *1–2 (5th Cir. 1992) (unpublished) (treating the question of original\nand removal jurisdiction under the Convention as identical).\n This two-step jurisdictional inquiry is consistent with case law\ninterpreting the Convention. See, e.g., BP Expl. Libya Ltd. v. ExxonMobil\nLibya Ltd., 689 F.3d 481, 487 & n.4 (5th Cir. 2012) (finding jurisdiction where\nthere was a covered arbitration agreement and the suit sought appointment of\narbitrators); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir.\n1990) (holding that jurisdiction over preliminary injunction in aid of covered\narbitration was proper because the remedy sought did not try to “bypass\narbitration”); Sunkyong Eng’g & Const. Co. v. Born, Inc., 149 F.3d 1174, 1998\nWL 413537, at *5 (5th Cir. 1998) (unpublished) (“The FAA grants the United\nStates district courts original federal question jurisdiction over arbitral awards\nand agreements to arbitrate that fall within the Convention.”); Venconsul N.V.\nv. Tim Int’l. N.V., 03Civ.5387(LTS)(MHD), 2003 WL 21804833, at *3 (S.D.N.Y.\nAug. 6, 2003) (“Borden has been interpreted as recognizing a court’s power to\nentertain requests for provisional remedies in aid of arbitration even where\nthe request for remedies does not accompany a motion to compel arbitration or\n 5\n\f Case: 16-30984 Document: 00515010237 Page: 6 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\nto confirm an award.”).\n Both jurisdictional requirements are met here. First, Daewoo’s\narbitration agreements with AMT are covered by the Convention. For an\narbitration agreement to be covered by the Convention, four requirements\nmust be met: (1) there must be an agreement in writing to arbitrate the\ndispute; (2) the agreement must provide for arbitration in the territory of a\nConvention signatory; (3) the agreement to arbitrate must arise out of a\ncommercial legal relationship; and (4) at least one party to the agreement must\nnot be an American citizen. See Freudensprung v. Offshore Tech. Servs., Inc.,\n379 F.3d 327, 339 (5th Cir. 2004); Sunkyong, 149 F.3d 1174, 1998 WL 413537,\nat *5; Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co. (Pemex), 767\nF.2d 1140, 1144–45 (5th Cir. 1985). All four requirements are met here:\n • There is an agreement in writing to arbitrate Daewoo and AMT’s\n dispute.\n • That agreement provides for arbitration in New York, and the United\n States is a signatory to the Convention.\n • The agreement arises out of a commercial relationship between Daewoo\n and AMT.\n • Both Daewoo and AMT are not American citizens.\n Second, this suit is related to the AMT arbitration agreements because\nDaewoo seeks an attachment to facilitate the arbitration provided for in the\nAMT agreements. See Borden, 919 F.2d at 826 (“[T]he desire for speedy\ndecisions in arbitration is entirely consistent with a desire to make as effective\nas possible recovery upon awards, after they have been made, which is what\nprovisional remedies do.” (internal quotation marks and citation omitted)).\nOur decision in E.A.S.T., Inc. of Stamford v. M/V Alaia, 876 F.2d 1168 (5th\nCir. 1989), strongly counsels towards recognizing subject matter jurisdiction\nbased on the Convention to issue provisional remedies in aid of arbitration.\nThe court in E.A.S.T., albeit in the context of a maritime attachment, found\n 6\n\f Case: 16-30984 Document: 00515010237 Page: 7 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\nthat the “the arrest of a vessel prior to arbitration is not inconsistent with the\nConvention.” Id. at 1173. And the court noted that the Convention “does not\nexpressly forbid pre-arbitration attachment” and that pre-arbitration\nattachment “may ‘serve[] . . . as a security device in aid of arbitration.’” Id.\n(alteration in original) (quoting Atlas Chartering Servs., Inc. v. World Trade\nGrp., Inc., 453 F. Supp. 861, 863 (S.D.N.Y. 1978)).\n Indeed, E.A.S.T.’s reasoning mirrors the reasoning of courts that have\nfound subject matter jurisdiction under the Convention to order state-law\nprovisional remedies. Like the court in E.A.S.T., those courts reason that\n“nothing in the Convention divests federal courts of jurisdiction to issue\nprovisional remedies . . . such as an attachment, when appropriate in\ninternational arbitrations.” Bahrain Telecomms. Co. v. Discoverytel, Inc., 476\nF. Supp. 2d 176, 181 (D. Conn. 2007); see also China Nat’l Metal Prods.\nImp./Exp. Co. v. Apex Dig., Inc., 155 F. Supp. 2d 1174, 1180 (C.D. Cal. 2001)\n(“Rather than conflicting with the parties’ agreement to arbitrate, provisional\nremedies such as attachment reinforce arbitration agreements by ensuring\nthat assets from which an arbitration award would be satisfied are secured\nwhile arbitration is pending.”). E.A.S.T. therefore strongly suggests that this\ncourt recognizes jurisdiction under the Convention to issue state-law\npreliminary remedies in aid of arbitration. 1\n\n\n 1 And there are compelling reasons against reading jurisdiction under Section 203 as\nnarrowly limited to the three remedies expressly allowed by the Convention (compelling\narbitration and appointing arbitrators in Section 206 and confirming awards in Section 207).\nNamely,\n [n]othing in § 206 or § 207 limits the subject matter jurisdiction\n of federal courts. These sections merely identify the remedies\n that federal courts may grant, and do not speak in jurisdictional\n terms or refer in any way to the jurisdiction of the district courts.\n . . . To grant the remedies provided in those sections, the Court\n must first determine that it has jurisdiction . . . .\n 7\n\f Case: 16-30984 Document: 00515010237 Page: 8 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\n Applying E.A.S.T. and the cases that follow it, the Convention grants\njurisdiction over Daewoo’s request for an attachment. Like the plaintiff in\nE.A.S.T., Daewoo sought to attach the pig iron in order to facilitate arbitration\nand increase its chance of recovering on any award. Because Daewoo sought\nattachment to bring about a covered arbitration—that is, because Daewoo’s\nsuit related to a covered arbitration agreement—this court has subject matter\njurisdiction. 2\n\n III\n The parties dispute whether Louisiana’s non-resident attachment\nstatute allows for attachment in aid of arbitration. The district court held that\nit does not.\n As stated previously, we certified to the Louisiana Supreme Court the\nquestion of whether a suit seeking to compel arbitration is an “action for a\nmoney judgment” under Louisiana’s non-resident attachment statute, La.\n\n\n\n Treating §§ 206 and 207 as jurisdictional provisions confuses the\n subject matter jurisdiction of federal courts with their remedial\n authority. Although jurisdiction is a word of many . . . meanings,\n there is a difference between the two. The nature of the relief\n available after jurisdiction attaches is, of course, different from\n the question whether there is jurisdiction to adjudicate the\n controversy . . . . The breadth or narrowness of the relief which\n may be granted under federal law . . . is a distinct question from\n whether the court has jurisdiction over the parties and the\n subject matter. Any error in granting or designing relief does\n not go to the jurisdiction of the court.\n\nCRT Capital Grp. v. SLS Capital, S.A., 63 F. Supp. 3d 367, 374–75 (S.D.N.Y. 2014) (internal\nquotations marks, citations, and alterations omitted). Simply put, the question of what\nremedies are available in a Convention suit is distinct from the question of jurisdiction.\n 2 We asked the parties to brief whether this court has personal jurisdiction under\n\nquasi in rem principles. We are satisfied that we have personal jurisdiction. See Republic\nNat’l Bank of Miami v. United States, 506 U.S. 80, 88–89 (1992); Nassau Realty Co., Inc. v.\nBrown, 332 So. 2d 206, 210 (La. 1976).\n 8\n\f Case: 16-30984 Document: 00515010237 Page: 9 Date Filed: 06/25/2019\n\n\n\n No. 16-30984\nCode Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica do Para\nCosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme Court\naccepted the certified question and answered: “Louisiana Code of Civil\nProcedure article 3542 allows for attachment in aid of arbitration if the origin\nof the underlying arbitration claim is one pursuing money damages and the\narbitral party has satisfied the statutory requirements necessary to obtain a\nwrit of attachment.” See Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar,\n--- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, *1 (La. May 8, 2019).\n Louisiana’s attachment statute provides that “[a] writ of attachment\nmay be obtained in any action for a money judgment, whether against a\nresident or a nonresident, regardless of the nature, character, or origin of the\nclaim, whether it is for a certain or uncertain amount, and whether it is\nliquidated or unliquidated.” La. Code Civ. Proc. art. 3542. The underlying\naction seeking to compel arbitration here is clearly an “action for a money\njudgment” under Louisiana’s non-resident attachment statute. See La. Code\nCiv. Proc. art. 3542. Daewoo has made it clear from the outset that it would\nbe pursuing a money judgment. The “nature, character, or origin of the claim”\njust happens to be arbitration. La. Code Civ. Proc. art. 3542. Thus, we\nconclude that the district court erred in finding that the Louisiana non-\nresident attachment statute was not available to Daewoo.\n IV\n For the above reasons, we VACATE and REMAND.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: STEMCOR USA INCORPORATED, Plaintiff v. CIA SIDERURGICA DO PARA COSIPAR, Et Al., Defendants Daewoo International Corporation, Plaintiff - Appellant v. Thyssenkrupp Mannex Gmbh, Intervenor Plaintiff - Appellee v. America Metals Trading L.L.P., Et Al., Defendants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-30984 Document: 00515010237 Page: 1 Date Filed: 06/25/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-30984 June 25, 2019\\n Lyle W. Cayce\\nSTEMCOR USA INCORPORATED, Clerk\\n\\n\\n Plaintiff\\n\\nv.\\n\\nCIA SIDERURGICA DO PARA COSIPAR, ET AL.,\\n\\n Defendants\\n----------------------------------------------\\n\\nDAEWOO INTERNATIONAL CORPORATION,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nTHYSSENKRUPP MANNEX GMBH,\\n\\n Intervenor Plaintiff - Appellee\\n\\nv.\\n\\nAMERICA METALS TRADING L.L.P., ET AL.,\\n\\n Defendants\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\f Case: 16-30984 Document: 00515010237 Page: 2 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\n ON PETITION FOR REHEARING\\nBefore HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n On second rehearing of this matter, we certified to the Louisiana\\nSupreme Court the question of whether a suit seeking to compel arbitration is\\nan “action for a money judgment” under Louisiana’s non-resident attachment\\nstatute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica\\ndo Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme\\nCourt having now provided its answer, we conclude that Louisiana’s non-\\nresident attachment statute allows for attachment in aid of arbitration. Thus,\\nwe grant rehearing, withdraw our prior opinion, 895 F.3d 375 (5th Cir. 2018),\\nand substitute the following. We also VACATE the judgment of the district\\ncourt and REMAND.\\n I\\n This is a dispute between two creditors, each of which attached the same\\npig iron owned by America Metals Trading L.L.P. (“AMT”). Plaintiff–Appellant\\nDaewoo International Corp. (“Daewoo”) is a South Korean trading company.\\nIn May 2012, Daewoo entered into a series of contracts with AMT for the\\npurchase of pig iron, to be delivered in New Orleans. The sale contracts\\ncontained arbitration clauses. Although Daewoo made payments under the\\ncontracts, AMT never shipped the pig iron. Thyssenkrupp Mannex GMBH\\n(“TKM”) is a German company. Between June 2010 and February 2011, TKM\\nentered into six contracts to purchase pig iron from AMT. AMT never\\ndelivered. In response to the breach of contract, TKM and AMT negotiated a\\nsettlement, which required AMT to make quarterly payments to TKM. AMT\\ndid not pay.\\n\\n\\n 2\\n\\f Case: 16-30984 Document: 00515010237 Page: 3 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\n Daewoo sued AMT in the Eastern District of Louisiana, seeking an order\\ncompelling arbitration and an attachment of the pig iron on board a ship then-\\nanchored in New Orleans. Daewoo invoked both maritime attachment and the\\nLouisiana non-resident attachment statute, which allows attachments in aid\\nof any “action for a money judgment.” La. Code Civ. Proc. art. 3542. Citing\\nboth types of attachment, the district court granted Daewoo its attachment.\\nIntervenor-Appellee TKM later attached the same pig iron in Louisiana state\\ncourt and intervened in Daewoo’s federal action arguing that maritime\\njurisdiction was improper and Louisiana’s non-resident attachment statute\\nwas inapplicable.\\n The district court agreed with TKM and vacated Daewoo’s attachment.\\nSee Stemcor USA, Inc. v. Am. Metals Trading, LLP, 199 F. Supp. 3d 1102 (E.D.\\nLa. 2016). Specifically, the district court found that because Daewoo’s\\nunderlying suit sought to compel arbitration, it was not an “action for a money\\njudgment.” Thus, the district court found that Daewoo could not receive a non-\\nresident attachment writ. After Daewoo’s writ was dissolved, TKM’s state\\ncourt attachment became first in time and the district court transferred\\nproceeds from the parties’ agreed sale of the pig iron to state court. Daewoo\\nappealed the district court’s conclusion that its Louisiana non-resident\\nattachment writ was invalid. This court heard oral arguments, rendered a\\ndecision and reconsidered this matter on rehearing. See Stemcor USA Inc. v.\\nCia Siderurgica do Para Cosipar, 870 F.3d 370 (5th Cir. 2017), opinion\\nwithdrawn and superseded on reh’g, 895 F.3d 375 (5th Cir. 2018).\\n On second rehearing of this matter, we certified to the Louisiana\\nSupreme Court the question of whether a suit seeking to compel arbitration is\\nan “action for a money judgment” under Louisiana’s non-resident attachment\\nstatute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica\\n 3\\n\\f Case: 16-30984 Document: 00515010237 Page: 4 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\ndo Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme\\nCourt has now answered. See Stemcor USA Inc. v. Cia Siderurgica do Para\\nCosipar, --- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, (La. May 8, 2019).\\n\\n II\\n The district court found federal subject matter jurisdiction under the\\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards\\n(the “Convention”). We agree.\\n For a federal court to have jurisdiction under the Convention, two\\nrequirements must be met: (1) there must be an arbitration agreement or\\naward that falls under the Convention, and (2) the dispute must relate to that\\narbitration agreement. These requirements flow from the text of two sections\\nof the Convention. The explicit jurisdictional provision is Section 203, which\\ngives federal courts jurisdiction over all “action[s] or proceeding[s] falling\\nunder the Convention.” 9 U.S.C. § 203. “An arbitration agreement or arbitral\\naward arising out of a legal relationship, whether contractual or not, which is\\nconsidered as commercial, including a transaction, contract, or agreement\\ndescribed in section 2 of this title, falls under the Convention.” 9 U.S.C. § 202.\\nAccordingly, the first step for determining jurisdiction is deciding whether the\\n“arbitration agreement or award . . . falls under the Convention.” Id.\\n The next step, derived from Section 203, is to ask whether the “action or\\nproceeding”—as opposed to the arbitration agreement or award—falls under\\nthe Convention. The Convention’s removal statute offers guidance on what\\n“falling under” means because “[g]enerally, the removal jurisdiction of the\\nfederal district courts extends to cases over which they have original\\njurisdiction.” Francisco v. Stolt Achievement MT, 293 F.3d 270, 272 (5th Cir.\\n2002). Section 205 of the Convention allows for removal whenever “the subject\\n\\n 4\\n\\f Case: 16-30984 Document: 00515010237 Page: 5 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nmatter of an action or proceeding pending in a State court relates to an\\narbitration agreement or award falling under the Convention.” 9 U.S.C. § 205.\\nWe have read “relates to” to mean “has some connection, has some relation,\\n[or] has some reference” to. Acosta v. Master Maint. & Constr. Inc., 452 F.3d\\n373, 378–79 (5th Cir. 2006). And reading “falling under” to mean “relates to”\\nmakes sense grammatically. “Fall” means “to come within the limits, scope, or\\njurisdiction of something.” Merriam-Webster’s Collegiate Dictionary 418 (10th\\ned. 2002). Accordingly, the second step of the jurisdictional question is asking\\nwhether the “action or proceeding” “relates to” a covered arbitration agreement\\nor award. See Fred Parks, Inc. v. Total Compagnie, 981 F.2d 1255, 1992 WL\\n386999, at *1–2 (5th Cir. 1992) (unpublished) (treating the question of original\\nand removal jurisdiction under the Convention as identical).\\n This two-step jurisdictional inquiry is consistent with case law\\ninterpreting the Convention. See, e.g., BP Expl. Libya Ltd. v. ExxonMobil\\nLibya Ltd., 689 F.3d 481, 487 & n.4 (5th Cir. 2012) (finding jurisdiction where\\nthere was a covered arbitration agreement and the suit sought appointment of\\narbitrators); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir.\\n1990) (holding that jurisdiction over preliminary injunction in aid of covered\\narbitration was proper because the remedy sought did not try to “bypass\\narbitration”); Sunkyong Eng’g & Const. Co. v. Born, Inc., 149 F.3d 1174, 1998\\nWL 413537, at *5 (5th Cir. 1998) (unpublished) (“The FAA grants the United\\nStates district courts original federal question jurisdiction over arbitral awards\\nand agreements to arbitrate that fall within the Convention.”); Venconsul N.V.\\nv. Tim Int’l. N.V., 03Civ.5387(LTS)(MHD), 2003 WL 21804833, at *3 (S.D.N.Y.\\nAug. 6, 2003) (“Borden has been interpreted as recognizing a court’s power to\\nentertain requests for provisional remedies in aid of arbitration even where\\nthe request for remedies does not accompany a motion to compel arbitration or\\n 5\\n\\f Case: 16-30984 Document: 00515010237 Page: 6 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nto confirm an award.”).\\n Both jurisdictional requirements are met here. First, Daewoo’s\\narbitration agreements with AMT are covered by the Convention. For an\\narbitration agreement to be covered by the Convention, four requirements\\nmust be met: (1) there must be an agreement in writing to arbitrate the\\ndispute; (2) the agreement must provide for arbitration in the territory of a\\nConvention signatory; (3) the agreement to arbitrate must arise out of a\\ncommercial legal relationship; and (4) at least one party to the agreement must\\nnot be an American citizen. See Freudensprung v. Offshore Tech. Servs., Inc.,\\n379 F.3d 327, 339 (5th Cir. 2004); Sunkyong, 149 F.3d 1174, 1998 WL 413537,\\nat *5; Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co. (Pemex), 767\\nF.2d 1140, 1144–45 (5th Cir. 1985). All four requirements are met here:\\n • There is an agreement in writing to arbitrate Daewoo and AMT’s\\n dispute.\\n • That agreement provides for arbitration in New York, and the United\\n States is a signatory to the Convention.\\n • The agreement arises out of a commercial relationship between Daewoo\\n and AMT.\\n • Both Daewoo and AMT are not American citizens.\\n Second, this suit is related to the AMT arbitration agreements because\\nDaewoo seeks an attachment to facilitate the arbitration provided for in the\\nAMT agreements. See Borden, 919 F.2d at 826 (“[T]he desire for speedy\\ndecisions in arbitration is entirely consistent with a desire to make as effective\\nas possible recovery upon awards, after they have been made, which is what\\nprovisional remedies do.” (internal quotation marks and citation omitted)).\\nOur decision in E.A.S.T., Inc. of Stamford v. M/V Alaia, 876 F.2d 1168 (5th\\nCir. 1989), strongly counsels towards recognizing subject matter jurisdiction\\nbased on the Convention to issue provisional remedies in aid of arbitration.\\nThe court in E.A.S.T., albeit in the context of a maritime attachment, found\\n 6\\n\\f Case: 16-30984 Document: 00515010237 Page: 7 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nthat the “the arrest of a vessel prior to arbitration is not inconsistent with the\\nConvention.” Id. at 1173. And the court noted that the Convention “does not\\nexpressly forbid pre-arbitration attachment” and that pre-arbitration\\nattachment “may ‘serve[] . . . as a security device in aid of arbitration.’” Id.\\n(alteration in original) (quoting Atlas Chartering Servs., Inc. v. World Trade\\nGrp., Inc., 453 F. Supp. 861, 863 (S.D.N.Y. 1978)).\\n Indeed, E.A.S.T.’s reasoning mirrors the reasoning of courts that have\\nfound subject matter jurisdiction under the Convention to order state-law\\nprovisional remedies. Like the court in E.A.S.T., those courts reason that\\n“nothing in the Convention divests federal courts of jurisdiction to issue\\nprovisional remedies . . . such as an attachment, when appropriate in\\ninternational arbitrations.” Bahrain Telecomms. Co. v. Discoverytel, Inc., 476\\nF. Supp. 2d 176, 181 (D. Conn. 2007); see also China Nat’l Metal Prods.\\nImp./Exp. Co. v. Apex Dig., Inc., 155 F. Supp. 2d 1174, 1180 (C.D. Cal. 2001)\\n(“Rather than conflicting with the parties’ agreement to arbitrate, provisional\\nremedies such as attachment reinforce arbitration agreements by ensuring\\nthat assets from which an arbitration award would be satisfied are secured\\nwhile arbitration is pending.”). E.A.S.T. therefore strongly suggests that this\\ncourt recognizes jurisdiction under the Convention to issue state-law\\npreliminary remedies in aid of arbitration. 1\\n\\n\\n 1 And there are compelling reasons against reading jurisdiction under Section 203 as\\nnarrowly limited to the three remedies expressly allowed by the Convention (compelling\\narbitration and appointing arbitrators in Section 206 and confirming awards in Section 207).\\nNamely,\\n [n]othing in § 206 or § 207 limits the subject matter jurisdiction\\n of federal courts. These sections merely identify the remedies\\n that federal courts may grant, and do not speak in jurisdictional\\n terms or refer in any way to the jurisdiction of the district courts.\\n . . . To grant the remedies provided in those sections, the Court\\n must first determine that it has jurisdiction . . . .\\n 7\\n\\f Case: 16-30984 Document: 00515010237 Page: 8 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\n Applying E.A.S.T. and the cases that follow it, the Convention grants\\njurisdiction over Daewoo’s request for an attachment. Like the plaintiff in\\nE.A.S.T., Daewoo sought to attach the pig iron in order to facilitate arbitration\\nand increase its chance of recovering on any award. Because Daewoo sought\\nattachment to bring about a covered arbitration—that is, because Daewoo’s\\nsuit related to a covered arbitration agreement—this court has subject matter\\njurisdiction. 2\\n\\n III\\n The parties dispute whether Louisiana’s non-resident attachment\\nstatute allows for attachment in aid of arbitration. The district court held that\\nit does not.\\n As stated previously, we certified to the Louisiana Supreme Court the\\nquestion of whether a suit seeking to compel arbitration is an “action for a\\nmoney judgment” under Louisiana’s non-resident attachment statute, La.\\n\\n\\n\\n Treating §§ 206 and 207 as jurisdictional provisions confuses the\\n subject matter jurisdiction of federal courts with their remedial\\n authority. Although jurisdiction is a word of many . . . meanings,\\n there is a difference between the two. The nature of the relief\\n available after jurisdiction attaches is, of course, different from\\n the question whether there is jurisdiction to adjudicate the\\n controversy . . . . The breadth or narrowness of the relief which\\n may be granted under federal law . . . is a distinct question from\\n whether the court has jurisdiction over the parties and the\\n subject matter. Any error in granting or designing relief does\\n not go to the jurisdiction of the court.\\n\\nCRT Capital Grp. v. SLS Capital, S.A., 63 F. Supp. 3d 367, 374–75 (S.D.N.Y. 2014) (internal\\nquotations marks, citations, and alterations omitted). Simply put, the question of what\\nremedies are available in a Convention suit is distinct from the question of jurisdiction.\\n 2 We asked the parties to brief whether this court has personal jurisdiction under\\n\\nquasi in rem principles. We are satisfied that we have personal jurisdiction. See Republic\\nNat’l Bank of Miami v. United States, 506 U.S. 80, 88–89 (1992); Nassau Realty Co., Inc. v.\\nBrown, 332 So. 2d 206, 210 (La. 1976).\\n 8\\n\\f Case: 16-30984 Document: 00515010237 Page: 9 Date Filed: 06/25/2019\\n\\n\\n\\n No. 16-30984\\nCode Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica do Para\\nCosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme Court\\naccepted the certified question and answered: “Louisiana Code of Civil\\nProcedure article 3542 allows for attachment in aid of arbitration if the origin\\nof the underlying arbitration claim is one pursuing money damages and the\\narbitral party has satisfied the statutory requirements necessary to obtain a\\nwrit of attachment.” See Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar,\\n--- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, *1 (La. May 8, 2019).\\n Louisiana’s attachment statute provides that “[a] writ of attachment\\nmay be obtained in any action for a money judgment, whether against a\\nresident or a nonresident, regardless of the nature, character, or origin of the\\nclaim, whether it is for a certain or uncertain amount, and whether it is\\nliquidated or unliquidated.” La. Code Civ. Proc. art. 3542. The underlying\\naction seeking to compel arbitration here is clearly an “action for a money\\njudgment” under Louisiana’s non-resident attachment statute. See La. Code\\nCiv. Proc. art. 3542. Daewoo has made it clear from the outset that it would\\nbe pursuing a money judgment. The “nature, character, or origin of the claim”\\njust happens to be arbitration. La. Code Civ. Proc. art. 3542. Thus, we\\nconclude that the district court erred in finding that the Louisiana non-\\nresident attachment statute was not available to Daewoo.\\n IV\\n For the above reasons, we VACATE and REMAND.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2471,"cells":{"id":{"kind":"number","value":4633290,"string":"4,633,290"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Rosie DIGGLES; Walter Diggles; Anita Diggles, Defendants - Appellants"},"name_abbreviation":{"kind":"string","value":"United States v. Rosie Diggles"},"decision_date":{"kind":"string","value":"2019-06-26"},"docket_number":{"kind":"string","value":"18-40521"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Costa, Higginbotham, Jones\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40521 Document: 00515011481 Page: 1 Date Filed: 06/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-40521 FILED\\n June 26, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n Multiple hurricanes—especially Rita and Ike—ravaged the eastern\\nTexas Gulf Coast in the first decade of this century. Untold millions in federal\\ndisaster assistance helped rebuild those communities. But some people took\\nadvantage of that taxpayer generosity. A jury found that was the case for the\\nthree family members charged with fraud in this case: Walter and Rosie\\nDiggles and their daughter Anita.\\n All three now argue that there was insufficient evidence to convict them.\\nThey also contend that, if their convictions were valid, four conditions of their\\nsupervised release must be vacated because the district court did not read\\n\\f Case: 18-40521 Document: 00515011481 Page: 2 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nthem aloud at sentencing. We affirm their convictions and two of the disputed\\nconditions, remanding to adjust one condition and remove another.\\n I.\\n The Deep East Texas Council of Governments (DETCOG) is an\\nassociation of local governments in a twelve-county area near the Louisiana\\nborder. 1 Using federal and state grants, DETCOG funds programs geared\\ntoward housing, the elderly, and the disabled, among other efforts. It also\\nadministers federal hurricane-relief funds.\\n Congress responded to Hurricanes Katrina and Rita, and later Dolly and\\nIke, by appropriating block grants for relief efforts. The Texas Health and\\nHuman Services Commission administered the funds the state received.\\nDETCOG in turn received millions of those dollars, which it used to reimburse\\nvarious service providers in east Texas.\\n One of those providers was the Deep East Texas Foundation. The\\nFoundation operated in Jasper out of the New Lighthouse Church of God in\\nChrist. It sought and received reimbursements from DETCOG for a variety of\\nservices, including “case management” (counseling and assisting individuals\\nin need of individual financial support); the 21st Century Learning Center (an\\nafter-school and summer program for at-risk children); and annual conferences\\nhosted by the New Lighthouse Church. A “vendor agreement” between\\nDETCOG and the Foundation set reimbursement rates for several services,\\nincluding case management and education.\\n A chart may be helpful. The green arrows represent the flow of federal\\nfunds. The blue arrows represent the chain of reimbursement requests.\\n\\n\\n\\n\\n 1 We recite the facts in the light most favorable to the government given the guilty\\nverdicts.\\n 2\\n\\f Case: 18-40521 Document: 00515011481 Page: 3 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n\\n\\n\\n\\n Walter Diggles wore many hats in this reimbursement chain. He (1) ran\\nDETCOG as its executive director; (2) was the founder of the Foundation and\\nhad signature authority over its bank account; and (3) was the pastor at the\\nNew Lighthouse Church, out of which the Foundation operated its programs.\\nAlso, one of those programs—the Learning Center—was run by his wife Anita\\nand daughter Rosie.\\n Walter’s multiple roles enabled the fraud. Once the hurricane funds left\\nthe state agency, Walter could control them the rest of the way. And all it took\\nfor the state to send money was for Walter to certify that DETCOG was using\\nthe money properly. For each request for Katrina and Rita funds, Walter\\nwould certify that “all outlays” were “for the purposes set forth” in the grant\\nagreement. For the Dolly and Ike grants, he would certify that DETCOG had\\n\\n 3\\n\\f Case: 18-40521 Document: 00515011481 Page: 4 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n“completely verified the supporting information/evidence” from its vendors so\\nas to “justify the amounts set forth” in the requests for further funding.\\n But the programs’ expenses did not support many of the amounts\\nDETCOG sought. Here are some examples:\\n The Learning Center: The Foundation’s vendor agreement called for\\nreimbursement for “Education & Training” at between $48 and $144 per “unit”\\n(the Learning Center treated an hour of instruction as a unit). But the\\nLearning Center’s teachers were paid less than $20 per hour. Anita\\nnevertheless prepared paperwork requesting reimbursement at rates as high\\nas $110 per hour. The Foundation sent that paperwork to DETCOG, where\\nWalter would sign off. The rate inflation added up: Between 2009 and 2011,\\nthe Foundation got roughly $240,000 for education expenses, while paying its\\nteachers less than $130,000.\\n The Learning Center’s transportation costs tell a similar story. The\\nvendor agreement did not set a unit rate for transportation, but the Learning\\nCenter charged one: at least $10, and sometimes as high as $17, per student\\nfor round-trip transportation to and from the Learning Center in vans. The\\ndesignated pick-up areas were mostly in Jasper, and the few in surrounding\\ncommunities were no more than 5–10 miles away. But the reimbursement\\nrates meant the Foundation received, in one of the most extreme instances,\\nnearly $7,500 for four days of transportation costs. Between 2008 and 2011,\\nthe Foundation billed north of $200,000 for transportation despite paying less\\nthan $30,000 in transportation-related expenses. The government\\nacknowledges that those numbers do not include amounts paid to drivers, but\\nLearning Center workers who drove the vans were paid around $8 an hour—\\nnowhere near enough to account for the $170,000 discrepancy.\\n Case Management: The vendor agreement set rates for case management\\nat, as with education, between $48 and $144 per hour. But one case manager\\n 4\\n\\f Case: 18-40521 Document: 00515011481 Page: 5 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\ntestified he was paid just $10 an hour, and another testified she was paid $27.\\nBetween 2009 and 2011, the Foundation received $150,000 for case\\nmanagement expenses but paid case managers just $82,000.\\n 2009 “Closeout”: In 2009, the Foundation sought and received a\\n“closeout” payment of $245,000 for unreimbursed expenses. That included a\\n$116,000 request for the Foundation’s 2008 payroll expenses. But this was\\ndouble billing—the Foundation had already billed for payments to its workers\\nthroughout 2008.\\n 2010 Conference: Walter’s church held annual conferences, which one\\nwitness described as akin to revivals. In addition to worship, the conferences\\nfeatured workshops on topics like single parenting and credit repair. For its\\n2009 conference, the Foundation sought and received reimbursement for 186\\n“units” of training (each workshop attended was a unit, and some attendees\\nwent to more than one workshop) at $48 each—a total reimbursement just shy\\nof $9,000. By way of supporting documentation, the Foundation submitted the\\nattendees’ sign-in sheets, which reflected the workshops they went to.\\n For the 2010 conference, the Foundation got more than four times as\\nmuch: $39,000. But the supporting documentation was a fabrication; it was a\\ncopy of the 2009 sign-in sheets with just a few additions. The purported\\nattendees were the same, and the tops of both sets read “Annual Conference\\nJuly 7-11, 2009.” The difference was that some of the “2010” sign-in sheets had\\nblank spots filled in to make it look like attendees went to additional\\nworkshops as well as those they attended in 2009.\\n 2012 Conference: At its 2012 conference, the church performed health\\nscreenings. The screening equipment (cholesterol machines and glucometers\\nthat could be used any number of times, plus one-time-use blood sugar test\\nstrips) cost about $750. But the Foundation sought and received\\nreimbursement at $144 for each of 61 people screened, or $8,784 total.\\n 5\\n\\f Case: 18-40521 Document: 00515011481 Page: 6 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n Where did the extra money go? Walter, Anita, and Rosie used it for\\npersonal expenses. Over 99% of the money in the Foundation’s accounts was\\nfrom hurricane relief. The Foundation transferred hundreds of thousands of\\nthose dollars into the New Lighthouse Church’s accounts. And money in the\\nchurch accounts went to pay the defendants’ credit card bills, to write checks\\nto cash or to family members, and to pay for other personal expenses.\\n The grand jury charged Walter with conspiracy to commit wire fraud,\\neleven counts of wire fraud, two counts of theft from a program receiving\\nfederal funds, and three counts of money laundering. It charged Rosie with\\nthe conspiracy count, ten counts of wire fraud, and a money laundering count.\\nAnita was charged with only the conspiracy count. The jury convicted on all\\ncounts. The district court sentenced Walter to 108 months. Rosie and Anita\\nreceived below-Guidelines sentences of 54 months. The district court also\\nimposed terms of supervised release for each defendant and ordered Walter to\\npay $1.33 million in restitution, with Rosie and Anita jointly and severally\\nliable for just over $970,000.\\n II.\\n Each defendant argues that the government’s evidence was insufficient\\nto find them guilty. We review the evidence “in the light most favorable” to the\\nverdict. United States v. Miles, 360 F.3d 472, 476–77 (5th Cir. 2004). We must\\naffirm the verdict unless no rational jury could have found the defendants\\nguilty beyond a reasonable doubt. United States v. Njoku, 737 F.3d 55, 62 (5th\\nCir. 2013).\\n A.\\n Walter challenges the sufficiency of the evidence for each count. We\\nbegin with his arguments that go to all counts and then consider his challenges\\nto individual ones.\\n\\n\\n 6\\n\\f Case: 18-40521 Document: 00515011481 Page: 7 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n Walter does not dispute that the Foundation asked for and received more\\nthan its expenses, but contends that doing so was allowed for two reasons.\\nFirst, he argues that the Foundation charged rates set by its vendor agreement\\nwith DETCOG. But the jury had good reason to see the vendor agreement as\\npart of the fraud, not a defense to it (to say nothing of the fact that it set rates\\nfor teachers and case managers but not, for instance, for transportation or\\nhealth screenings). Walter’s idea appears to be that negotiated rates cannot\\nbe fraudulently inflated. But he was essentially on both sides of the\\nagreement—this was not an arm’s length negotiation. Walter signed the\\nvendor agreement for DETCOG in his capacity as executive director; he had\\nthe last word on the rates and on one occasion rejected an attempt by DETCOG\\nemployees to lower them. On the other side of the vendor agreement, while\\nWalter did not sign on the Foundation’s behalf (its president, R.C. Horn, did),\\nWalter was the founder of the Foundation, had signature authority over its\\nbank accounts, and pastored the church out of which it operated. There is also\\nevidence that he held substantial sway over Horn. Walter thus controlled the\\nagreed rates. That made the scheme a more sophisticated one, not a lawful\\none.\\n Walter’s other argument for why the Foundation was allowed to bill\\nabove costs is based on federal guidance on how nonprofits should treat\\noverhead costs. The contract between the Commission and DETCOG cites an\\nOMB circular on accounting principles for nonprofits, which says that\\noverhead costs may be allocated to reimbursements for services rendered\\nunder a grant. See OFFICE OF MGMT. & BUDGET, CIRCULAR NO. A-122, Cost\\nPrinciples for Non-Profit Organizations, at 7 (2004) (allowing allocation of costs\\nthat are “necessary to the overall operation of the institution, although a direct\\nrelationship to any particular cost objective cannot be shown.”). But even if\\nsome of the Foundation’s rate inflation was to cover overhead costs allocated\\n 7\\n\\f Case: 18-40521 Document: 00515011481 Page: 8 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nto the hurricane-relief grants, there is no reason to think that accounted for\\nreimbursements so far above what the Foundation paid for those services.\\nPlus, no one contemporaneously believed DETCOG was reimbursing the\\nFoundation in part for overhead. One of DETCOG’s managers for block-grant\\nfunds testified that DETCOG employees understood that reimbursements\\ncould not exceed a vendor’s actual costs for services. Similarly, a memo from\\nDETCOG’s controller instructed that the Foundation’s “hourly rate for\\neducation services and case management should not exceed actual costs.” The\\nFoundation’s reimbursement requests, too, purported to bill for the “cost” of\\nparticular “allowable services,” without any indication that overhead was\\nincluded. The jury reasonably rejected Walter’s overhead-cost defense.\\n Before getting into Walter’s count-specific arguments, we address one\\nmore generally applicable issue: intent to defraud. Insufficient evidence of that\\nintent would undermine most of Walter’s convictions. 2 But there is plenty.\\nWalter was the pastor of the church out of which the Foundation operated and\\nsometimes paid the Foundation’s employees. So there is good reason to\\nconclude that Walter knew both what employees were being paid and at least\\nthe approximate costs of other services the Foundation provided. He\\nnevertheless certified to the Commission that the Foundation’s paperwork\\n(which included inflated rates) justified the reimbursements. In one instance\\nparticularly revealing of Walter’s intent, DETCOG employees grew concerned\\nduring 2009 about the Foundation’s reimbursement rates. They decided to\\nreduce them, but Walter instructed that they be put “back the way they were.”\\n\\n\\n\\n 2 See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014) (fraud conspiracy\\nunder 18 U.S.C. § 1349 requires proof of intent to defraud); United States v. Hoffman, 901\\nF.3d 523, 545 (5th Cir. 2018) (same for substantive wire fraud). Walter’s money laundering\\nconvictions required that the funds he transacted came from a “specified unlawful activity.”\\n18 U.S.C. § 1957. The grand jury alleged the fraud conspiracy as that activity, so those\\nconvictions also require intent to defraud.\\n 8\\n\\f Case: 18-40521 Document: 00515011481 Page: 9 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nIt is hardly surprising that Walter wanted to keep the overbilling gap; he was\\nits main beneficiary. Roughly $400,000 went from the Foundation to the\\nchurch accounts, out of which Walter paid over $150,000 in credit card bills,\\npaid off a $40,000 loan to an entity run by Walter and his son, and made\\nnumerous checks out to family members and to cash. The evidence paints a\\ncompelling picture of Walter’s intent to defraud.\\n Moving on to his to count-specific arguments, Walter argues that the\\nemail that is the interstate wire for his first wire fraud count—one he sent\\nconditionally approving reimbursement for the church’s 2010 annual\\nconference—did not involve a misrepresentation. This misunderstands the\\nwire requirement. The wire “need not contain a falsehood”; it need only further\\nthe fraud scheme (which itself must involve lies). United States v. Hoffman,\\n901 F.3d 523, 545–46 (5th Cir. 2018). The Count 2 email advanced the fraud\\nas it put the Foundation one step closer to obtaining government funds for the\\n2010 conference. See id. at 547 (holding that an email that was “a step in\\nverifying” costs submitted to the government furthered a fraud scheme). And\\nwe have already explained that the overall fraud scheme contained numerous\\nmisrepresentations related to costs, including the ultimate submission of\\nfabricated paperwork to support requests related to the 2010 conference.\\n Walter’s other ten wire fraud convictions involve interstate transfers\\nfrom the church’s main bank account to his credit cards. These likewise\\nfurthered the fraud. Indeed, to the fraudster, obtaining the proceeds is not just\\npart of the fraud, it is the reason for it. See United States v. Vilar, 729 F.3d 62,\\n95 (2d Cir. 2013) (“In as much as [the defendant] used the wire transfers to\\nsend the money to his own account, the wire transfers were undoubtedly in\\nfurtherance of the scheme to defraud.”). There is sufficient evidence for all the\\nwire fraud convictions.\\n\\n\\n 9\\n\\f Case: 18-40521 Document: 00515011481 Page: 10 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n Next, Walter disputes his two convictions for theft from a program\\nreceiving federal funds. That crime occurs when an agent of a federally funded\\nentity steals or “knowingly converts” at least $5,000 of the organization’s\\nproperty. 18 U.S.C. § 666(a)(1)(A). The first of these counts was based on the\\n2010 conference (the one with the fabricated sign-in sheets), and the second\\nwas based on the 2012 conference (the one with the health screenings). As to\\nthe 2010 conference, we reject Walter’s argument that he was unaware of the\\nphony documentation. Along with the evidence generally showing that Walter\\norchestrated the overbilling scheme, Walter approved reimbursements for both\\nthe 2009 and 2010 conferences despite the nearly identical supporting\\npaperwork. When the $39,000 in federal funds arrived at the Foundation,\\nWalter promptly wrote a $39,000 check to the church days later.\\n For the 2012 conference, Walter instructed the Foundation’s president\\n(Horn) to cut a $7,500 check to a health service run by Walter’s sister as part\\nof the reimbursement. Horn did as he was told, but Walter deposited the check\\ninto the main church account, which he essentially used as a personal account.\\nThat conversion, combined with the evidence that the Foundation received\\nover $8,000 in reimbursement for health screenings that cost it less than\\n$1,000, supports the conviction.\\n We last address Walter’s money laundering convictions. A section 1957\\ncrime occurs when a defendant engages in a financial transaction with\\nproperty worth over $10,000, knowing that the property was derived from\\nunlawful activity. United States v. Alaniz, 726 F.3d 586, 602 (5th Cir. 2013).\\nThe statute does not require concealment of funds, id., so Walter’s objection on\\nthat ground fails. But his argument that the charged funds did not come from\\nunlawful activity (or at least that he did not know that) do target an element\\nof the offense. We consider those objections to each count.\\n\\n\\n 10\\n\\f Case: 18-40521 Document: 00515011481 Page: 11 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n The first money laundering count involves deposits Walter made\\nfollowing the 2010 conference. We have already addressed Walter’s knowledge\\nof the fabrication underlying that reimbursement. When, armed with that\\nknowledge, Walter deposited the $39,000 check from the Foundation he\\nviolated section 1957.\\n The next two counts relate to the 2009 “closeout” reimbursement, the one\\nthat double billed for the Foundation’s 2008 payroll. Walter used some of these\\nfederal funds to purchase CDs, which he later cashed and deposited back into\\nthe church account. For the reasons we have already recited demonstrating\\nWalter’s involvement in, indeed leadership of, the fraud, the jury could find\\nthat he was not oblivious to the unlawful source of these funds. Walter’s\\ntransactions with the closeout funds support his section 1957 convictions. 3\\n We uphold each of Walter’s convictions.\\n B.\\n We now move to Anita, who was charged and convicted only of\\nconspiracy. We have already explained that the evidence supports the jury’s\\nfinding that Walter orchestrated a scheme to defraud. The sufficiency question\\nfor Anita is whether she agreed to participate in it, with the intent that it\\nsucceed. See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014).\\n Direct evidence of an agreement to commit a crime is rare, so\\ncircumstantial evidence often proves a conspiracy. There is enough of that type\\n\\n\\n 3Walter’s deposits into the church’s bank account were “monetary transactions” under\\nsection 1957. See 18 U.S.C. § 1957(f)(1). And although Walter does not raise the issue of\\ndistinguishing the proceeds of the fraud from the subsequent deposits of those proceeds, we\\nnote that the fraud was complete once the overbilled funds hit the Foundation’s account, over\\nwhich Walter had signature authority. See United States v. Leahy, 82 F.3d 624, 635 (5th Cir.\\n1996) (“Fraudulent schemes produce proceeds, ‘at the latest when the scheme succeeds in\\ndisgorging the funds from the victim and placing them into the control of the perpetrators.’”\\n(quoting and emphasizing United States v. Allen, 76 F.3d 1348, 1361 (5th Cir. 1996)). The\\nfraud got the money into the Foundation’s account; the money laundering got it into the\\nchurch’s.\\n 11\\n\\f Case: 18-40521 Document: 00515011481 Page: 12 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nof evidence here—in the form of concerted action, knowledge of the fraud, and\\nprofiting from it—to support the conviction. Anita and Walter worked together\\nto make the overbilling happen: Anita administered the Learning Center,\\nsubmitting the inflated reimbursement requests, which Walter signed off on.\\nSee United States v. Curtis, 635 F.3d 704, 719 (5th Cir. 2011) (noting that\\n“concerted action” is evidence of agreement). Anita knew about the overbilling.\\nAs the person overseeing the Learning Center, Anita could see both sides of\\nthe ledger. She authorized pay for teachers, signed checks for fuel, and knew\\nwhat the drivers were paid. But she requested reimbursement at higher “cost\\nper unit” rates. Last but not least, she benefitted from the fraud, using the\\nproceeds to pay for her car and rent among other things. See id. at 719\\n(recognizing that receiving a substantial share of a fraud conspiracy’s proceeds\\nis evidence of involvement). The jury reasonably found Anita guilty of\\nconspiracy.\\n C.\\n Rosie challenges her convictions for conspiracy and wire fraud. Her case\\nis closer than Anita’s. Both were supervisors at the Learning Center, and there\\nis evidence that Rosie too knew what its actual costs were. Yet unlike with\\nAnita, there is no evidence that Rosie handled reimbursement requests. That\\nis, while Anita knew and facilitated both sides of the ledger, Rosie appears only\\nto have participated in the Learning Center’s operations, not its funding.\\n But as long as the evidence supports a reasonable inference that Rosie\\nknew of the overbilling scheme, her “minor participation” in it can support her\\nconvictions. United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009). Rosie\\nwas at the Learning Center daily and told employees what to do. She made\\nhiring decisions and ran staff meetings. Rosie was thus integrally involved in\\nthe functioning of the Learning Center, without which a substantial portion of\\nthe overbilling scheme would not have been possible. If Rosie knew that Anita\\n 12\\n\\f Case: 18-40521 Document: 00515011481 Page: 13 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nwas submitting inflated reimbursement requests for Walter to sign off on, the\\njury could conclude from her supervision of the Learning Center that she had\\nagreed to help facilitate the fraud.\\n Although the proof of Rosie’s knowledge is weaker than it is for the other\\ndefendants, it is enough for us to uphold the verdict of the jury that sat through\\nthis nine-day trial. Rosie was married to one conspirator, and her daughter\\nwas another. Those family ties are insufficient on their own to prove she joined\\nthe conspiracy, but they are one factor that can be considered along with other\\nindications that she knew about the fraud. United States v. Willett, 751 F.3d\\n335, 340 (5th Cir. 2014). Foremost among that additional evidence, Rosie knew\\nthat hurricane money was travelling from DETCOG into the church accounts,\\nwhich she then used for personal expenses. Rosie admitted that she knew\\nWalter ran DETCOG and that the Foundation got grant funds from DETCOG.\\nShe also knew that money in the church accounts came from the Foundation;\\non one occasion, she deposited a $30,000 check from the Foundation into the\\nchurch’s youth department account. She had signature authority on that\\naccount, almost all the money in which came from the Foundation, as well as\\nthe church’s main account. The jury could infer from her access to those\\naccounts that she knew the church received hundreds of thousands of dollars\\nfrom the Foundation.\\n She also benefitted from the fraud. In addition to what she derived from\\nWalter’s use of proceeds to pay credit card bills, Rosie made around $13,000 in\\ncell phone payments (among others) from the youth department account. She\\nalso made $15,500 in credit card payments from the account for her ministry,\\n“Heart to Heart,” where nearly all the money came from the youth department\\n\\n\\n\\n\\n 13\\n\\f Case: 18-40521 Document: 00515011481 Page: 14 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\naccount. 4 In the absence of overbilling, there would have been no money left\\nover for personal expenses like these. Rosie’s awareness and use of the extra\\ncash coming from the Foundation supports the inference that she knew the\\nFoundation was overbilling.\\n Statements Rosie made to the FBI could also be one of the puzzle pieces\\nthat the jury concluded fit together to show guilt. When asked about Walter’s\\nrole at the Foundation, Rosie said that Walter had nothing to do with it beyond\\nproviding advice when requested, and specifically that Walter did not help the\\nFoundation get any grant money. She also said that the money in the Heart\\nto Heart account came from donations—that is, not the Foundation. The jury\\ncould have taken those false statements to indicate that Rosie knew she ought\\nto hide her awareness of the scheme. See United States v. Villarreal, 324 F.3d\\n319, 325 (5th Cir. 2003).\\n We uphold each of Rosie’s convictions.\\n III.\\n Only Rosie appeals the prison time she received. She argues that the\\ndistrict court misapplied a two-level enhancement added when “the offense\\ninvolved . . . a misrepresentation that the defendant was acting on behalf of a\\ncharitable, educational, religious, or political organization, or a government\\nagency.” U.S.S.G. § 2B1.1(b)(9)(A). The enhancement clearly applies if a\\ndefendant lied about having any connection to a listed organization. Less\\nobviously, it also applies if a defendant had authority to act for a charity but\\ndiverted some of the funds the nonprofit received for “personal gain.” Id. cmt.\\n\\n\\n\\n\\n 4 These credit card and phone payments were the bases for Rosie’s ten individual wire\\nfraud convictions. As we find enough evidence that she joined the scheme to defraud, these\\npayments were one way she received the benefit of that fraud. They thus furthered the\\nscheme and support her wire fraud convictions. See Vilar, 729 F.3d at 95.\\n 14\\n\\f Case: 18-40521 Document: 00515011481 Page: 15 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nn.8(B); see United States v. Reasor, 541 F.3d 366, 372 (5th Cir. 2008). That is\\nthe basis for the enhancement here.\\n Rosie argues that although Walter solicited funds for DETCOG, and\\nAnita solicited funds for the Learning Center, she never solicited funds so could\\nnot have made a covered misrepresentation. This ignores that the Guidelines\\nhold Rosie responsible for the foreseeable acts of her coconspirators. U.S.S.G.\\n§ 1B1.3(a)(1)(B). The requests for government funds were foreseeable, indeed\\nintegral, parts of the conspiracy. As we have upheld Rosie’s conviction as a\\ncoconspirator, Walter’s and Anita’s solicitations are attributable to her. There\\nwas no Guidelines error.\\n IV.\\n Each defendant challenges the four special conditions of supervised\\nrelease listed in their judgments. These conditions require each defendant to:\\n(1) “pay any financial penalty that is imposed by the judgment”; (2) “provide\\nthe probation officer with access to any requested financial information for\\npurposes of monitoring restitution payments and employment”; (3) “not incur\\nnew credit charges or open additional lines of credit without the approval of\\nthe probation officer” until full payment is made; and (4) “not participate in\\nany form of gambling” until full payment is made. The defendants’ objection\\nis that the district court did not officially recite these conditions at sentencing.\\nInstead, the judge told them that the conditions recommended in their\\nPresentence Reports, which included the four special conditions, would be\\nconditions of their supervised release. He even identified the page numbers of\\nthe PSRs listing the conditions. The government nonetheless concedes that by\\nfailing to “orally recite the special conditions one by one,” the district court\\nerred, warranting removal of the four special conditions from the defendants’\\njudgments.\\n\\n\\n 15\\n\\f Case: 18-40521 Document: 00515011481 Page: 16 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n The requirement that a judge orally state a sentence is a product of the\\ndefendant’s constitutional right to be present at sentencing. United States v.\\nMartinez, 250 F.3d 941, 942 (5th Cir. 2001). To preserve that right, the oral\\npronouncement controls over a conflicting written judgment. United States v.\\nMudd, 685 F.3d 473, 480 (5th Cir. 2012). A true conflict is not required;\\nincluding an unpronounced aspect of the sentence in the written judgment may\\n“broaden” the oral sentence and thus “conflict” with it. United States v. Rivas-\\nEstrada, 906 F.3d 346, 350 (5th Cir. 2018). We have been strict about this\\nrequirement, recently holding that a district court abused its discretion in\\ntelling the defendant only that the conditions listed in the PSR would be\\nimposed. Id. at 350–51.\\n Rivas-Estrada is difficult to reconcile with older caselaw holding that\\nwritten notice of the conditions at sentencing suffices. See United States v.\\nRouland, 726 F.3d 728, 734 (5th Cir. 2013) (upholding practice in which the\\ngovernment moves at sentencing to admit an exhibit listing special conditions,\\neven though the court does not individually recite them); see also United States\\nv. Al Haj, 731 F. App’x 377, 379 (5th Cir. 2018) (finding no error when\\ndefendant signed a paper listing the conditions). The need for notice underlies\\nthe oral pronouncement requirement. Rouland, 726 F.3d at 733–34 (5th Cir.\\n2013). 5 When a sentencing judge makes no mention, either directly or\\nindirectly, of a condition, the lack of notice deprives the defendant of an\\n\\n\\n\\n\\n 5 More precisely, whether the defendant had notice of a special condition determines\\nthe standard of review. Without adequate notice, discrepancies between the written\\njudgment and the oral pronouncement are reviewed for abuse of discretion; with it, they are\\nreviewed for plain error. Rivas-Estrada, 906 F.3d at 348–49; Rouland, 726 F.3d at 733–34.\\nBut this determination is the “critical” one. Rivas-Estrada, 906 F.3d at 348; see Rouland,\\n726 F.3d at 734 (accepting defendant’s concession that an unpronounced special condition did\\nnot affect his substantial rights, as necessary for reversal under plain error review).\\n 16\\n\\f Case: 18-40521 Document: 00515011481 Page: 17 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nopportunity to object. But the defendant has that opportunity when the court\\nreferred to a list of the conditions being imposed. Id. at 734.\\n The only difference between this case and Rouland is that the referenced\\nlists of the Diggles’ conditions were their Presentence Reports rather than a\\nseparate document. It is hard to see why that makes a difference. But see\\nRivas-Estrada, 906 F.3d at 349–50 (framing the district court in Rouland as\\nhaving done “more than the minimum” by offering a “unique chance to object”).\\nOne of the first questions a court typically asks at sentencing is whether the\\ndefendant has reviewed the PSR. The court followed that standard script in\\nthis case. As the key sentencing document, the PSR is also available at the\\nhearing. The defendant thus has written notice of the conditions and an\\nopportunity to object both when a court refers to a list in the PSR (especially\\nwhen it does so by page number as happened here) and when it refers to\\nRouland’s separate exhibit listing the conditions.\\n But we are bound to follow Rivas-Estrada’s view that referring to the\\nPSR is not enough, which is why the government concedes. We are not,\\nhowever, required to follow the government’s overall concession on this issue.\\nUnited States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). Our “independent\\nreview,” id., reveals no conflict between the oral sentence and the written one\\nfor three of the disputed special conditions. One of them is so obviously in tune\\nwith the oral sentence that it cannot be said to have created a conflict. Two\\nothers, despite being described as special conditions, are actually standard\\nconditions (though one needs a slight adjustment). And an unannounced\\nstandard condition does not create a conflict. Rivas-Estrada, 906 F.3d at 348.\\n At this point, some background on the types of supervised release\\nconditions is useful. Mandatory conditions are required by statute. U.S.S.G.\\n§ 5D1.3(a). Standard conditions are “recommended” in all circumstances. Id.\\n§ 5D1.3(c). As both are “implicit in the very nature of supervised release,” they\\n 17\\n\\f Case: 18-40521 Document: 00515011481 Page: 18 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nare presumed to be part of the judgment and need not be orally pronounced.\\nUnited States v. Torres-Aguilar, 352 F.3d 934, 936 (5th Cir. 2003) (quoting\\nUnited States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999)). In contrast, special\\nconditions are ones that “may be appropriate” on a case-by-case basis, U.S.S.G.\\n§ 5D1.3(d), and that ad hoc applicability warrants putting defendants on notice\\nat sentencing by reading special conditions aloud.\\n The key is that sometimes a condition labeled special is really a standard\\ncondition. See Rouland, 726 F.3d at 735 (“[S]pecial conditions may be\\ntantamount to standard conditions under the appropriate circumstances,\\nthereby precluding the need for an oral pronouncement.”). Aside from being\\npotentially “appropriate” in any case, the special conditions in section 5D1.3(d)\\nare “recommended” in certain circumstances. And when a condition is\\nrecommended, it is essentially a standard condition and thus need not be orally\\npronounced. Torres-Aguilar, 352 F.3d at 937–38. That the Guidelines would\\nstill call that condition special is “irrelevant.” Id. at 937 (quoting United States\\nv. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002)).\\n Under this principle, the access-to-financial-information condition is a\\nstandard condition. It is recommended by section 5D1.3(d) when restitution is\\nordered, which it was for each defendant. U.S.S.G. § 5D1.3(d)(3). As a result,\\nthe district court did not err in failing to recite this standard condition at\\nsentencing.\\n The Guidelines also recommend a no-new-credit condition when\\nrestitution is ordered. U.S.S.G. § 5D1.3(d)(2). So a prohibition on new credit\\nwas implicit in the defendants’ oral sentences. But the Guidelines version\\nprohibits new credit “unless the defendant is in compliance with the payment\\nschedule.” Id. The defendants’ written judgments set up a monthly payment\\nschedule but, in contrast to the Guidelines, prohibit new credit “unless\\npayment . . . has been made in full.” The written judgments thus broaden the\\n 18\\n\\f Case: 18-40521 Document: 00515011481 Page: 19 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nextent of the prohibition; under the Guidelines version, the defendants could\\nopen new lines of credit so long as they keep up with their payments, but under\\nthe written judgment, they can open new lines of credit only once they pay the\\nfull amount of restitution. We remand for the district court to reform the\\nwritten no-new-credit condition to match the one implied by the oral sentence\\nof restitution—that is, the Guidelines version. See United States v. Mireles,\\n471 F.3d 551, 558 (5th Cir. 2006) (“If a conflict exists, the appropriate remedy\\nis remand to the district court to amend the written judgment to conform to\\nthe oral sentence.”).\\n As for the condition requiring payment of financial penalties, we do not\\nsee how it could conflict with an oral sentence imposing those penalties. See\\nUnited States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (explaining that a\\nwritten condition does not conflict with an unpronounced condition if the\\ncondition “is clearly consistent with the district court’s intent . . . as evidenced\\nin the statements made by the court at the sentencing hearing”). Requiring a\\ndefendant to make those payments is consistent with, if not essential to, those\\npenalties. Indeed, a “special” condition requiring payment of restitution is\\nlargely unnecessary. Making restitution payments is a mandatory condition\\nof supervised release, as the defendants’ written judgments also reflect.\\nU.S.S.G. § 5D1.3(a)(6). This may show that the “special” condition was for the\\nmost part redundant (it just adds payment of the special assessment, an\\namount that pales in comparison to restitution), but it also shows that it does\\nnot conflict with the rest of the sentence.\\n We do, however, vacate the no-gambling condition. The Guidelines do\\nnot include it as a condition recommended if restitution is ordered. And\\nforbidding gambling is not so “clearly consistent” with an oral pronouncement\\nof restitution as to be reasonably encompassed within that pronouncement.\\nContrast Warden, 291 F.3d at 365 (holding that a written condition requiring\\n 19\\n\\f Case: 18-40521 Document: 00515011481 Page: 20 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\ndefendant to pay for drug treatment was clearly consistent with a pronounced\\ncondition requiring the defendant to get drug treatment).\\n * * *\\n We AFFIRM the judgments of conviction, VACATE the “no-new-credit”\\nand “no-gambling” conditions for the supervised release terms, and REMAND\\nfor the district court to amend its written judgments by (1) reforming the no-\\nnew-credit condition to conform to section 5D1.3(d)(2) of the Guidelines, and\\n(2) removing the no-gambling condition.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4410543/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"COSTA"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4633290/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Rosie DIGGLES; Walter Diggles; Anita Diggles, Defendants - Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40521 Document: 00515011481 Page: 1 Date Filed: 06/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-40521 FILED\n June 26, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,\n\n Defendants - Appellants\n\n\n\n\n Appeals from the United States District Court\n for the Eastern District of Texas\n\n\nBefore HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n Multiple hurricanes—especially Rita and Ike—ravaged the eastern\nTexas Gulf Coast in the first decade of this century. Untold millions in federal\ndisaster assistance helped rebuild those communities. But some people took\nadvantage of that taxpayer generosity. A jury found that was the case for the\nthree family members charged with fraud in this case: Walter and Rosie\nDiggles and their daughter Anita.\n All three now argue that there was insufficient evidence to convict them.\nThey also contend that, if their convictions were valid, four conditions of their\nsupervised release must be vacated because the district court did not read\n\f Case: 18-40521 Document: 00515011481 Page: 2 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nthem aloud at sentencing. We affirm their convictions and two of the disputed\nconditions, remanding to adjust one condition and remove another.\n I.\n The Deep East Texas Council of Governments (DETCOG) is an\nassociation of local governments in a twelve-county area near the Louisiana\nborder. 1 Using federal and state grants, DETCOG funds programs geared\ntoward housing, the elderly, and the disabled, among other efforts. It also\nadministers federal hurricane-relief funds.\n Congress responded to Hurricanes Katrina and Rita, and later Dolly and\nIke, by appropriating block grants for relief efforts. The Texas Health and\nHuman Services Commission administered the funds the state received.\nDETCOG in turn received millions of those dollars, which it used to reimburse\nvarious service providers in east Texas.\n One of those providers was the Deep East Texas Foundation. The\nFoundation operated in Jasper out of the New Lighthouse Church of God in\nChrist. It sought and received reimbursements from DETCOG for a variety of\nservices, including “case management” (counseling and assisting individuals\nin need of individual financial support); the 21st Century Learning Center (an\nafter-school and summer program for at-risk children); and annual conferences\nhosted by the New Lighthouse Church. A “vendor agreement” between\nDETCOG and the Foundation set reimbursement rates for several services,\nincluding case management and education.\n A chart may be helpful. The green arrows represent the flow of federal\nfunds. The blue arrows represent the chain of reimbursement requests.\n\n\n\n\n 1 We recite the facts in the light most favorable to the government given the guilty\nverdicts.\n 2\n\f Case: 18-40521 Document: 00515011481 Page: 3 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n\n\n\n\n Walter Diggles wore many hats in this reimbursement chain. He (1) ran\nDETCOG as its executive director; (2) was the founder of the Foundation and\nhad signature authority over its bank account; and (3) was the pastor at the\nNew Lighthouse Church, out of which the Foundation operated its programs.\nAlso, one of those programs—the Learning Center—was run by his wife Anita\nand daughter Rosie.\n Walter’s multiple roles enabled the fraud. Once the hurricane funds left\nthe state agency, Walter could control them the rest of the way. And all it took\nfor the state to send money was for Walter to certify that DETCOG was using\nthe money properly. For each request for Katrina and Rita funds, Walter\nwould certify that “all outlays” were “for the purposes set forth” in the grant\nagreement. For the Dolly and Ike grants, he would certify that DETCOG had\n\n 3\n\f Case: 18-40521 Document: 00515011481 Page: 4 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n“completely verified the supporting information/evidence” from its vendors so\nas to “justify the amounts set forth” in the requests for further funding.\n But the programs’ expenses did not support many of the amounts\nDETCOG sought. Here are some examples:\n The Learning Center: The Foundation’s vendor agreement called for\nreimbursement for “Education & Training” at between $48 and $144 per “unit”\n(the Learning Center treated an hour of instruction as a unit). But the\nLearning Center’s teachers were paid less than $20 per hour. Anita\nnevertheless prepared paperwork requesting reimbursement at rates as high\nas $110 per hour. The Foundation sent that paperwork to DETCOG, where\nWalter would sign off. The rate inflation added up: Between 2009 and 2011,\nthe Foundation got roughly $240,000 for education expenses, while paying its\nteachers less than $130,000.\n The Learning Center’s transportation costs tell a similar story. The\nvendor agreement did not set a unit rate for transportation, but the Learning\nCenter charged one: at least $10, and sometimes as high as $17, per student\nfor round-trip transportation to and from the Learning Center in vans. The\ndesignated pick-up areas were mostly in Jasper, and the few in surrounding\ncommunities were no more than 5–10 miles away. But the reimbursement\nrates meant the Foundation received, in one of the most extreme instances,\nnearly $7,500 for four days of transportation costs. Between 2008 and 2011,\nthe Foundation billed north of $200,000 for transportation despite paying less\nthan $30,000 in transportation-related expenses. The government\nacknowledges that those numbers do not include amounts paid to drivers, but\nLearning Center workers who drove the vans were paid around $8 an hour—\nnowhere near enough to account for the $170,000 discrepancy.\n Case Management: The vendor agreement set rates for case management\nat, as with education, between $48 and $144 per hour. But one case manager\n 4\n\f Case: 18-40521 Document: 00515011481 Page: 5 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\ntestified he was paid just $10 an hour, and another testified she was paid $27.\nBetween 2009 and 2011, the Foundation received $150,000 for case\nmanagement expenses but paid case managers just $82,000.\n 2009 “Closeout”: In 2009, the Foundation sought and received a\n“closeout” payment of $245,000 for unreimbursed expenses. That included a\n$116,000 request for the Foundation’s 2008 payroll expenses. But this was\ndouble billing—the Foundation had already billed for payments to its workers\nthroughout 2008.\n 2010 Conference: Walter’s church held annual conferences, which one\nwitness described as akin to revivals. In addition to worship, the conferences\nfeatured workshops on topics like single parenting and credit repair. For its\n2009 conference, the Foundation sought and received reimbursement for 186\n“units” of training (each workshop attended was a unit, and some attendees\nwent to more than one workshop) at $48 each—a total reimbursement just shy\nof $9,000. By way of supporting documentation, the Foundation submitted the\nattendees’ sign-in sheets, which reflected the workshops they went to.\n For the 2010 conference, the Foundation got more than four times as\nmuch: $39,000. But the supporting documentation was a fabrication; it was a\ncopy of the 2009 sign-in sheets with just a few additions. The purported\nattendees were the same, and the tops of both sets read “Annual Conference\nJuly 7-11, 2009.” The difference was that some of the “2010” sign-in sheets had\nblank spots filled in to make it look like attendees went to additional\nworkshops as well as those they attended in 2009.\n 2012 Conference: At its 2012 conference, the church performed health\nscreenings. The screening equipment (cholesterol machines and glucometers\nthat could be used any number of times, plus one-time-use blood sugar test\nstrips) cost about $750. But the Foundation sought and received\nreimbursement at $144 for each of 61 people screened, or $8,784 total.\n 5\n\f Case: 18-40521 Document: 00515011481 Page: 6 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n Where did the extra money go? Walter, Anita, and Rosie used it for\npersonal expenses. Over 99% of the money in the Foundation’s accounts was\nfrom hurricane relief. The Foundation transferred hundreds of thousands of\nthose dollars into the New Lighthouse Church’s accounts. And money in the\nchurch accounts went to pay the defendants’ credit card bills, to write checks\nto cash or to family members, and to pay for other personal expenses.\n The grand jury charged Walter with conspiracy to commit wire fraud,\neleven counts of wire fraud, two counts of theft from a program receiving\nfederal funds, and three counts of money laundering. It charged Rosie with\nthe conspiracy count, ten counts of wire fraud, and a money laundering count.\nAnita was charged with only the conspiracy count. The jury convicted on all\ncounts. The district court sentenced Walter to 108 months. Rosie and Anita\nreceived below-Guidelines sentences of 54 months. The district court also\nimposed terms of supervised release for each defendant and ordered Walter to\npay $1.33 million in restitution, with Rosie and Anita jointly and severally\nliable for just over $970,000.\n II.\n Each defendant argues that the government’s evidence was insufficient\nto find them guilty. We review the evidence “in the light most favorable” to the\nverdict. United States v. Miles, 360 F.3d 472, 476–77 (5th Cir. 2004). We must\naffirm the verdict unless no rational jury could have found the defendants\nguilty beyond a reasonable doubt. United States v. Njoku, 737 F.3d 55, 62 (5th\nCir. 2013).\n A.\n Walter challenges the sufficiency of the evidence for each count. We\nbegin with his arguments that go to all counts and then consider his challenges\nto individual ones.\n\n\n 6\n\f Case: 18-40521 Document: 00515011481 Page: 7 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n Walter does not dispute that the Foundation asked for and received more\nthan its expenses, but contends that doing so was allowed for two reasons.\nFirst, he argues that the Foundation charged rates set by its vendor agreement\nwith DETCOG. But the jury had good reason to see the vendor agreement as\npart of the fraud, not a defense to it (to say nothing of the fact that it set rates\nfor teachers and case managers but not, for instance, for transportation or\nhealth screenings). Walter’s idea appears to be that negotiated rates cannot\nbe fraudulently inflated. But he was essentially on both sides of the\nagreement—this was not an arm’s length negotiation. Walter signed the\nvendor agreement for DETCOG in his capacity as executive director; he had\nthe last word on the rates and on one occasion rejected an attempt by DETCOG\nemployees to lower them. On the other side of the vendor agreement, while\nWalter did not sign on the Foundation’s behalf (its president, R.C. Horn, did),\nWalter was the founder of the Foundation, had signature authority over its\nbank accounts, and pastored the church out of which it operated. There is also\nevidence that he held substantial sway over Horn. Walter thus controlled the\nagreed rates. That made the scheme a more sophisticated one, not a lawful\none.\n Walter’s other argument for why the Foundation was allowed to bill\nabove costs is based on federal guidance on how nonprofits should treat\noverhead costs. The contract between the Commission and DETCOG cites an\nOMB circular on accounting principles for nonprofits, which says that\noverhead costs may be allocated to reimbursements for services rendered\nunder a grant. See OFFICE OF MGMT. & BUDGET, CIRCULAR NO. A-122, Cost\nPrinciples for Non-Profit Organizations, at 7 (2004) (allowing allocation of costs\nthat are “necessary to the overall operation of the institution, although a direct\nrelationship to any particular cost objective cannot be shown.”). But even if\nsome of the Foundation’s rate inflation was to cover overhead costs allocated\n 7\n\f Case: 18-40521 Document: 00515011481 Page: 8 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nto the hurricane-relief grants, there is no reason to think that accounted for\nreimbursements so far above what the Foundation paid for those services.\nPlus, no one contemporaneously believed DETCOG was reimbursing the\nFoundation in part for overhead. One of DETCOG’s managers for block-grant\nfunds testified that DETCOG employees understood that reimbursements\ncould not exceed a vendor’s actual costs for services. Similarly, a memo from\nDETCOG’s controller instructed that the Foundation’s “hourly rate for\neducation services and case management should not exceed actual costs.” The\nFoundation’s reimbursement requests, too, purported to bill for the “cost” of\nparticular “allowable services,” without any indication that overhead was\nincluded. The jury reasonably rejected Walter’s overhead-cost defense.\n Before getting into Walter’s count-specific arguments, we address one\nmore generally applicable issue: intent to defraud. Insufficient evidence of that\nintent would undermine most of Walter’s convictions. 2 But there is plenty.\nWalter was the pastor of the church out of which the Foundation operated and\nsometimes paid the Foundation’s employees. So there is good reason to\nconclude that Walter knew both what employees were being paid and at least\nthe approximate costs of other services the Foundation provided. He\nnevertheless certified to the Commission that the Foundation’s paperwork\n(which included inflated rates) justified the reimbursements. In one instance\nparticularly revealing of Walter’s intent, DETCOG employees grew concerned\nduring 2009 about the Foundation’s reimbursement rates. They decided to\nreduce them, but Walter instructed that they be put “back the way they were.”\n\n\n\n 2 See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014) (fraud conspiracy\nunder 18 U.S.C. § 1349 requires proof of intent to defraud); United States v. Hoffman, 901\nF.3d 523, 545 (5th Cir. 2018) (same for substantive wire fraud). Walter’s money laundering\nconvictions required that the funds he transacted came from a “specified unlawful activity.”\n18 U.S.C. § 1957. The grand jury alleged the fraud conspiracy as that activity, so those\nconvictions also require intent to defraud.\n 8\n\f Case: 18-40521 Document: 00515011481 Page: 9 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nIt is hardly surprising that Walter wanted to keep the overbilling gap; he was\nits main beneficiary. Roughly $400,000 went from the Foundation to the\nchurch accounts, out of which Walter paid over $150,000 in credit card bills,\npaid off a $40,000 loan to an entity run by Walter and his son, and made\nnumerous checks out to family members and to cash. The evidence paints a\ncompelling picture of Walter’s intent to defraud.\n Moving on to his to count-specific arguments, Walter argues that the\nemail that is the interstate wire for his first wire fraud count—one he sent\nconditionally approving reimbursement for the church’s 2010 annual\nconference—did not involve a misrepresentation. This misunderstands the\nwire requirement. The wire “need not contain a falsehood”; it need only further\nthe fraud scheme (which itself must involve lies). United States v. Hoffman,\n901 F.3d 523, 545–46 (5th Cir. 2018). The Count 2 email advanced the fraud\nas it put the Foundation one step closer to obtaining government funds for the\n2010 conference. See id. at 547 (holding that an email that was “a step in\nverifying” costs submitted to the government furthered a fraud scheme). And\nwe have already explained that the overall fraud scheme contained numerous\nmisrepresentations related to costs, including the ultimate submission of\nfabricated paperwork to support requests related to the 2010 conference.\n Walter’s other ten wire fraud convictions involve interstate transfers\nfrom the church’s main bank account to his credit cards. These likewise\nfurthered the fraud. Indeed, to the fraudster, obtaining the proceeds is not just\npart of the fraud, it is the reason for it. See United States v. Vilar, 729 F.3d 62,\n95 (2d Cir. 2013) (“In as much as [the defendant] used the wire transfers to\nsend the money to his own account, the wire transfers were undoubtedly in\nfurtherance of the scheme to defraud.”). There is sufficient evidence for all the\nwire fraud convictions.\n\n\n 9\n\f Case: 18-40521 Document: 00515011481 Page: 10 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n Next, Walter disputes his two convictions for theft from a program\nreceiving federal funds. That crime occurs when an agent of a federally funded\nentity steals or “knowingly converts” at least $5,000 of the organization’s\nproperty. 18 U.S.C. § 666(a)(1)(A). The first of these counts was based on the\n2010 conference (the one with the fabricated sign-in sheets), and the second\nwas based on the 2012 conference (the one with the health screenings). As to\nthe 2010 conference, we reject Walter’s argument that he was unaware of the\nphony documentation. Along with the evidence generally showing that Walter\norchestrated the overbilling scheme, Walter approved reimbursements for both\nthe 2009 and 2010 conferences despite the nearly identical supporting\npaperwork. When the $39,000 in federal funds arrived at the Foundation,\nWalter promptly wrote a $39,000 check to the church days later.\n For the 2012 conference, Walter instructed the Foundation’s president\n(Horn) to cut a $7,500 check to a health service run by Walter’s sister as part\nof the reimbursement. Horn did as he was told, but Walter deposited the check\ninto the main church account, which he essentially used as a personal account.\nThat conversion, combined with the evidence that the Foundation received\nover $8,000 in reimbursement for health screenings that cost it less than\n$1,000, supports the conviction.\n We last address Walter’s money laundering convictions. A section 1957\ncrime occurs when a defendant engages in a financial transaction with\nproperty worth over $10,000, knowing that the property was derived from\nunlawful activity. United States v. Alaniz, 726 F.3d 586, 602 (5th Cir. 2013).\nThe statute does not require concealment of funds, id., so Walter’s objection on\nthat ground fails. But his argument that the charged funds did not come from\nunlawful activity (or at least that he did not know that) do target an element\nof the offense. We consider those objections to each count.\n\n\n 10\n\f Case: 18-40521 Document: 00515011481 Page: 11 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n The first money laundering count involves deposits Walter made\nfollowing the 2010 conference. We have already addressed Walter’s knowledge\nof the fabrication underlying that reimbursement. When, armed with that\nknowledge, Walter deposited the $39,000 check from the Foundation he\nviolated section 1957.\n The next two counts relate to the 2009 “closeout” reimbursement, the one\nthat double billed for the Foundation’s 2008 payroll. Walter used some of these\nfederal funds to purchase CDs, which he later cashed and deposited back into\nthe church account. For the reasons we have already recited demonstrating\nWalter’s involvement in, indeed leadership of, the fraud, the jury could find\nthat he was not oblivious to the unlawful source of these funds. Walter’s\ntransactions with the closeout funds support his section 1957 convictions. 3\n We uphold each of Walter’s convictions.\n B.\n We now move to Anita, who was charged and convicted only of\nconspiracy. We have already explained that the evidence supports the jury’s\nfinding that Walter orchestrated a scheme to defraud. The sufficiency question\nfor Anita is whether she agreed to participate in it, with the intent that it\nsucceed. See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014).\n Direct evidence of an agreement to commit a crime is rare, so\ncircumstantial evidence often proves a conspiracy. There is enough of that type\n\n\n 3Walter’s deposits into the church’s bank account were “monetary transactions” under\nsection 1957. See 18 U.S.C. § 1957(f)(1). And although Walter does not raise the issue of\ndistinguishing the proceeds of the fraud from the subsequent deposits of those proceeds, we\nnote that the fraud was complete once the overbilled funds hit the Foundation’s account, over\nwhich Walter had signature authority. See United States v. Leahy, 82 F.3d 624, 635 (5th Cir.\n1996) (“Fraudulent schemes produce proceeds, ‘at the latest when the scheme succeeds in\ndisgorging the funds from the victim and placing them into the control of the perpetrators.’”\n(quoting and emphasizing United States v. Allen, 76 F.3d 1348, 1361 (5th Cir. 1996)). The\nfraud got the money into the Foundation’s account; the money laundering got it into the\nchurch’s.\n 11\n\f Case: 18-40521 Document: 00515011481 Page: 12 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nof evidence here—in the form of concerted action, knowledge of the fraud, and\nprofiting from it—to support the conviction. Anita and Walter worked together\nto make the overbilling happen: Anita administered the Learning Center,\nsubmitting the inflated reimbursement requests, which Walter signed off on.\nSee United States v. Curtis, 635 F.3d 704, 719 (5th Cir. 2011) (noting that\n“concerted action” is evidence of agreement). Anita knew about the overbilling.\nAs the person overseeing the Learning Center, Anita could see both sides of\nthe ledger. She authorized pay for teachers, signed checks for fuel, and knew\nwhat the drivers were paid. But she requested reimbursement at higher “cost\nper unit” rates. Last but not least, she benefitted from the fraud, using the\nproceeds to pay for her car and rent among other things. See id. at 719\n(recognizing that receiving a substantial share of a fraud conspiracy’s proceeds\nis evidence of involvement). The jury reasonably found Anita guilty of\nconspiracy.\n C.\n Rosie challenges her convictions for conspiracy and wire fraud. Her case\nis closer than Anita’s. Both were supervisors at the Learning Center, and there\nis evidence that Rosie too knew what its actual costs were. Yet unlike with\nAnita, there is no evidence that Rosie handled reimbursement requests. That\nis, while Anita knew and facilitated both sides of the ledger, Rosie appears only\nto have participated in the Learning Center’s operations, not its funding.\n But as long as the evidence supports a reasonable inference that Rosie\nknew of the overbilling scheme, her “minor participation” in it can support her\nconvictions. United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009). Rosie\nwas at the Learning Center daily and told employees what to do. She made\nhiring decisions and ran staff meetings. Rosie was thus integrally involved in\nthe functioning of the Learning Center, without which a substantial portion of\nthe overbilling scheme would not have been possible. If Rosie knew that Anita\n 12\n\f Case: 18-40521 Document: 00515011481 Page: 13 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nwas submitting inflated reimbursement requests for Walter to sign off on, the\njury could conclude from her supervision of the Learning Center that she had\nagreed to help facilitate the fraud.\n Although the proof of Rosie’s knowledge is weaker than it is for the other\ndefendants, it is enough for us to uphold the verdict of the jury that sat through\nthis nine-day trial. Rosie was married to one conspirator, and her daughter\nwas another. Those family ties are insufficient on their own to prove she joined\nthe conspiracy, but they are one factor that can be considered along with other\nindications that she knew about the fraud. United States v. Willett, 751 F.3d\n335, 340 (5th Cir. 2014). Foremost among that additional evidence, Rosie knew\nthat hurricane money was travelling from DETCOG into the church accounts,\nwhich she then used for personal expenses. Rosie admitted that she knew\nWalter ran DETCOG and that the Foundation got grant funds from DETCOG.\nShe also knew that money in the church accounts came from the Foundation;\non one occasion, she deposited a $30,000 check from the Foundation into the\nchurch’s youth department account. She had signature authority on that\naccount, almost all the money in which came from the Foundation, as well as\nthe church’s main account. The jury could infer from her access to those\naccounts that she knew the church received hundreds of thousands of dollars\nfrom the Foundation.\n She also benefitted from the fraud. In addition to what she derived from\nWalter’s use of proceeds to pay credit card bills, Rosie made around $13,000 in\ncell phone payments (among others) from the youth department account. She\nalso made $15,500 in credit card payments from the account for her ministry,\n“Heart to Heart,” where nearly all the money came from the youth department\n\n\n\n\n 13\n\f Case: 18-40521 Document: 00515011481 Page: 14 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\naccount. 4 In the absence of overbilling, there would have been no money left\nover for personal expenses like these. Rosie’s awareness and use of the extra\ncash coming from the Foundation supports the inference that she knew the\nFoundation was overbilling.\n Statements Rosie made to the FBI could also be one of the puzzle pieces\nthat the jury concluded fit together to show guilt. When asked about Walter’s\nrole at the Foundation, Rosie said that Walter had nothing to do with it beyond\nproviding advice when requested, and specifically that Walter did not help the\nFoundation get any grant money. She also said that the money in the Heart\nto Heart account came from donations—that is, not the Foundation. The jury\ncould have taken those false statements to indicate that Rosie knew she ought\nto hide her awareness of the scheme. See United States v. Villarreal, 324 F.3d\n319, 325 (5th Cir. 2003).\n We uphold each of Rosie’s convictions.\n III.\n Only Rosie appeals the prison time she received. She argues that the\ndistrict court misapplied a two-level enhancement added when “the offense\ninvolved . . . a misrepresentation that the defendant was acting on behalf of a\ncharitable, educational, religious, or political organization, or a government\nagency.” U.S.S.G. § 2B1.1(b)(9)(A). The enhancement clearly applies if a\ndefendant lied about having any connection to a listed organization. Less\nobviously, it also applies if a defendant had authority to act for a charity but\ndiverted some of the funds the nonprofit received for “personal gain.” Id. cmt.\n\n\n\n\n 4 These credit card and phone payments were the bases for Rosie’s ten individual wire\nfraud convictions. As we find enough evidence that she joined the scheme to defraud, these\npayments were one way she received the benefit of that fraud. They thus furthered the\nscheme and support her wire fraud convictions. See Vilar, 729 F.3d at 95.\n 14\n\f Case: 18-40521 Document: 00515011481 Page: 15 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nn.8(B); see United States v. Reasor, 541 F.3d 366, 372 (5th Cir. 2008). That is\nthe basis for the enhancement here.\n Rosie argues that although Walter solicited funds for DETCOG, and\nAnita solicited funds for the Learning Center, she never solicited funds so could\nnot have made a covered misrepresentation. This ignores that the Guidelines\nhold Rosie responsible for the foreseeable acts of her coconspirators. U.S.S.G.\n§ 1B1.3(a)(1)(B). The requests for government funds were foreseeable, indeed\nintegral, parts of the conspiracy. As we have upheld Rosie’s conviction as a\ncoconspirator, Walter’s and Anita’s solicitations are attributable to her. There\nwas no Guidelines error.\n IV.\n Each defendant challenges the four special conditions of supervised\nrelease listed in their judgments. These conditions require each defendant to:\n(1) “pay any financial penalty that is imposed by the judgment”; (2) “provide\nthe probation officer with access to any requested financial information for\npurposes of monitoring restitution payments and employment”; (3) “not incur\nnew credit charges or open additional lines of credit without the approval of\nthe probation officer” until full payment is made; and (4) “not participate in\nany form of gambling” until full payment is made. The defendants’ objection\nis that the district court did not officially recite these conditions at sentencing.\nInstead, the judge told them that the conditions recommended in their\nPresentence Reports, which included the four special conditions, would be\nconditions of their supervised release. He even identified the page numbers of\nthe PSRs listing the conditions. The government nonetheless concedes that by\nfailing to “orally recite the special conditions one by one,” the district court\nerred, warranting removal of the four special conditions from the defendants’\njudgments.\n\n\n 15\n\f Case: 18-40521 Document: 00515011481 Page: 16 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\n The requirement that a judge orally state a sentence is a product of the\ndefendant’s constitutional right to be present at sentencing. United States v.\nMartinez, 250 F.3d 941, 942 (5th Cir. 2001). To preserve that right, the oral\npronouncement controls over a conflicting written judgment. United States v.\nMudd, 685 F.3d 473, 480 (5th Cir. 2012). A true conflict is not required;\nincluding an unpronounced aspect of the sentence in the written judgment may\n“broaden” the oral sentence and thus “conflict” with it. United States v. Rivas-\nEstrada, 906 F.3d 346, 350 (5th Cir. 2018). We have been strict about this\nrequirement, recently holding that a district court abused its discretion in\ntelling the defendant only that the conditions listed in the PSR would be\nimposed. Id. at 350–51.\n Rivas-Estrada is difficult to reconcile with older caselaw holding that\nwritten notice of the conditions at sentencing suffices. See United States v.\nRouland, 726 F.3d 728, 734 (5th Cir. 2013) (upholding practice in which the\ngovernment moves at sentencing to admit an exhibit listing special conditions,\neven though the court does not individually recite them); see also United States\nv. Al Haj, 731 F. App’x 377, 379 (5th Cir. 2018) (finding no error when\ndefendant signed a paper listing the conditions). The need for notice underlies\nthe oral pronouncement requirement. Rouland, 726 F.3d at 733–34 (5th Cir.\n2013). 5 When a sentencing judge makes no mention, either directly or\nindirectly, of a condition, the lack of notice deprives the defendant of an\n\n\n\n\n 5 More precisely, whether the defendant had notice of a special condition determines\nthe standard of review. Without adequate notice, discrepancies between the written\njudgment and the oral pronouncement are reviewed for abuse of discretion; with it, they are\nreviewed for plain error. Rivas-Estrada, 906 F.3d at 348–49; Rouland, 726 F.3d at 733–34.\nBut this determination is the “critical” one. Rivas-Estrada, 906 F.3d at 348; see Rouland,\n726 F.3d at 734 (accepting defendant’s concession that an unpronounced special condition did\nnot affect his substantial rights, as necessary for reversal under plain error review).\n 16\n\f Case: 18-40521 Document: 00515011481 Page: 17 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nopportunity to object. But the defendant has that opportunity when the court\nreferred to a list of the conditions being imposed. Id. at 734.\n The only difference between this case and Rouland is that the referenced\nlists of the Diggles’ conditions were their Presentence Reports rather than a\nseparate document. It is hard to see why that makes a difference. But see\nRivas-Estrada, 906 F.3d at 349–50 (framing the district court in Rouland as\nhaving done “more than the minimum” by offering a “unique chance to object”).\nOne of the first questions a court typically asks at sentencing is whether the\ndefendant has reviewed the PSR. The court followed that standard script in\nthis case. As the key sentencing document, the PSR is also available at the\nhearing. The defendant thus has written notice of the conditions and an\nopportunity to object both when a court refers to a list in the PSR (especially\nwhen it does so by page number as happened here) and when it refers to\nRouland’s separate exhibit listing the conditions.\n But we are bound to follow Rivas-Estrada’s view that referring to the\nPSR is not enough, which is why the government concedes. We are not,\nhowever, required to follow the government’s overall concession on this issue.\nUnited States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). Our “independent\nreview,” id., reveals no conflict between the oral sentence and the written one\nfor three of the disputed special conditions. One of them is so obviously in tune\nwith the oral sentence that it cannot be said to have created a conflict. Two\nothers, despite being described as special conditions, are actually standard\nconditions (though one needs a slight adjustment). And an unannounced\nstandard condition does not create a conflict. Rivas-Estrada, 906 F.3d at 348.\n At this point, some background on the types of supervised release\nconditions is useful. Mandatory conditions are required by statute. U.S.S.G.\n§ 5D1.3(a). Standard conditions are “recommended” in all circumstances. Id.\n§ 5D1.3(c). As both are “implicit in the very nature of supervised release,” they\n 17\n\f Case: 18-40521 Document: 00515011481 Page: 18 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nare presumed to be part of the judgment and need not be orally pronounced.\nUnited States v. Torres-Aguilar, 352 F.3d 934, 936 (5th Cir. 2003) (quoting\nUnited States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999)). In contrast, special\nconditions are ones that “may be appropriate” on a case-by-case basis, U.S.S.G.\n§ 5D1.3(d), and that ad hoc applicability warrants putting defendants on notice\nat sentencing by reading special conditions aloud.\n The key is that sometimes a condition labeled special is really a standard\ncondition. See Rouland, 726 F.3d at 735 (“[S]pecial conditions may be\ntantamount to standard conditions under the appropriate circumstances,\nthereby precluding the need for an oral pronouncement.”). Aside from being\npotentially “appropriate” in any case, the special conditions in section 5D1.3(d)\nare “recommended” in certain circumstances. And when a condition is\nrecommended, it is essentially a standard condition and thus need not be orally\npronounced. Torres-Aguilar, 352 F.3d at 937–38. That the Guidelines would\nstill call that condition special is “irrelevant.” Id. at 937 (quoting United States\nv. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002)).\n Under this principle, the access-to-financial-information condition is a\nstandard condition. It is recommended by section 5D1.3(d) when restitution is\nordered, which it was for each defendant. U.S.S.G. § 5D1.3(d)(3). As a result,\nthe district court did not err in failing to recite this standard condition at\nsentencing.\n The Guidelines also recommend a no-new-credit condition when\nrestitution is ordered. U.S.S.G. § 5D1.3(d)(2). So a prohibition on new credit\nwas implicit in the defendants’ oral sentences. But the Guidelines version\nprohibits new credit “unless the defendant is in compliance with the payment\nschedule.” Id. The defendants’ written judgments set up a monthly payment\nschedule but, in contrast to the Guidelines, prohibit new credit “unless\npayment . . . has been made in full.” The written judgments thus broaden the\n 18\n\f Case: 18-40521 Document: 00515011481 Page: 19 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\nextent of the prohibition; under the Guidelines version, the defendants could\nopen new lines of credit so long as they keep up with their payments, but under\nthe written judgment, they can open new lines of credit only once they pay the\nfull amount of restitution. We remand for the district court to reform the\nwritten no-new-credit condition to match the one implied by the oral sentence\nof restitution—that is, the Guidelines version. See United States v. Mireles,\n471 F.3d 551, 558 (5th Cir. 2006) (“If a conflict exists, the appropriate remedy\nis remand to the district court to amend the written judgment to conform to\nthe oral sentence.”).\n As for the condition requiring payment of financial penalties, we do not\nsee how it could conflict with an oral sentence imposing those penalties. See\nUnited States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (explaining that a\nwritten condition does not conflict with an unpronounced condition if the\ncondition “is clearly consistent with the district court’s intent . . . as evidenced\nin the statements made by the court at the sentencing hearing”). Requiring a\ndefendant to make those payments is consistent with, if not essential to, those\npenalties. Indeed, a “special” condition requiring payment of restitution is\nlargely unnecessary. Making restitution payments is a mandatory condition\nof supervised release, as the defendants’ written judgments also reflect.\nU.S.S.G. § 5D1.3(a)(6). This may show that the “special” condition was for the\nmost part redundant (it just adds payment of the special assessment, an\namount that pales in comparison to restitution), but it also shows that it does\nnot conflict with the rest of the sentence.\n We do, however, vacate the no-gambling condition. The Guidelines do\nnot include it as a condition recommended if restitution is ordered. And\nforbidding gambling is not so “clearly consistent” with an oral pronouncement\nof restitution as to be reasonably encompassed within that pronouncement.\nContrast Warden, 291 F.3d at 365 (holding that a written condition requiring\n 19\n\f Case: 18-40521 Document: 00515011481 Page: 20 Date Filed: 06/26/2019\n\n\n\n No. 18-40521\ndefendant to pay for drug treatment was clearly consistent with a pronounced\ncondition requiring the defendant to get drug treatment).\n * * *\n We AFFIRM the judgments of conviction, VACATE the “no-new-credit”\nand “no-gambling” conditions for the supervised release terms, and REMAND\nfor the district court to amend its written judgments by (1) reforming the no-\nnew-credit condition to conform to section 5D1.3(d)(2) of the Guidelines, and\n(2) removing the no-gambling condition.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Rosie DIGGLES; Walter Diggles; Anita Diggles, Defendants - Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40521 Document: 00515011481 Page: 1 Date Filed: 06/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-40521 FILED\\n June 26, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n Multiple hurricanes—especially Rita and Ike—ravaged the eastern\\nTexas Gulf Coast in the first decade of this century. Untold millions in federal\\ndisaster assistance helped rebuild those communities. But some people took\\nadvantage of that taxpayer generosity. A jury found that was the case for the\\nthree family members charged with fraud in this case: Walter and Rosie\\nDiggles and their daughter Anita.\\n All three now argue that there was insufficient evidence to convict them.\\nThey also contend that, if their convictions were valid, four conditions of their\\nsupervised release must be vacated because the district court did not read\\n\\f Case: 18-40521 Document: 00515011481 Page: 2 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nthem aloud at sentencing. We affirm their convictions and two of the disputed\\nconditions, remanding to adjust one condition and remove another.\\n I.\\n The Deep East Texas Council of Governments (DETCOG) is an\\nassociation of local governments in a twelve-county area near the Louisiana\\nborder. 1 Using federal and state grants, DETCOG funds programs geared\\ntoward housing, the elderly, and the disabled, among other efforts. It also\\nadministers federal hurricane-relief funds.\\n Congress responded to Hurricanes Katrina and Rita, and later Dolly and\\nIke, by appropriating block grants for relief efforts. The Texas Health and\\nHuman Services Commission administered the funds the state received.\\nDETCOG in turn received millions of those dollars, which it used to reimburse\\nvarious service providers in east Texas.\\n One of those providers was the Deep East Texas Foundation. The\\nFoundation operated in Jasper out of the New Lighthouse Church of God in\\nChrist. It sought and received reimbursements from DETCOG for a variety of\\nservices, including “case management” (counseling and assisting individuals\\nin need of individual financial support); the 21st Century Learning Center (an\\nafter-school and summer program for at-risk children); and annual conferences\\nhosted by the New Lighthouse Church. A “vendor agreement” between\\nDETCOG and the Foundation set reimbursement rates for several services,\\nincluding case management and education.\\n A chart may be helpful. The green arrows represent the flow of federal\\nfunds. The blue arrows represent the chain of reimbursement requests.\\n\\n\\n\\n\\n 1 We recite the facts in the light most favorable to the government given the guilty\\nverdicts.\\n 2\\n\\f Case: 18-40521 Document: 00515011481 Page: 3 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n\\n\\n\\n\\n Walter Diggles wore many hats in this reimbursement chain. He (1) ran\\nDETCOG as its executive director; (2) was the founder of the Foundation and\\nhad signature authority over its bank account; and (3) was the pastor at the\\nNew Lighthouse Church, out of which the Foundation operated its programs.\\nAlso, one of those programs—the Learning Center—was run by his wife Anita\\nand daughter Rosie.\\n Walter’s multiple roles enabled the fraud. Once the hurricane funds left\\nthe state agency, Walter could control them the rest of the way. And all it took\\nfor the state to send money was for Walter to certify that DETCOG was using\\nthe money properly. For each request for Katrina and Rita funds, Walter\\nwould certify that “all outlays” were “for the purposes set forth” in the grant\\nagreement. For the Dolly and Ike grants, he would certify that DETCOG had\\n\\n 3\\n\\f Case: 18-40521 Document: 00515011481 Page: 4 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n“completely verified the supporting information/evidence” from its vendors so\\nas to “justify the amounts set forth” in the requests for further funding.\\n But the programs’ expenses did not support many of the amounts\\nDETCOG sought. Here are some examples:\\n The Learning Center: The Foundation’s vendor agreement called for\\nreimbursement for “Education & Training” at between $48 and $144 per “unit”\\n(the Learning Center treated an hour of instruction as a unit). But the\\nLearning Center’s teachers were paid less than $20 per hour. Anita\\nnevertheless prepared paperwork requesting reimbursement at rates as high\\nas $110 per hour. The Foundation sent that paperwork to DETCOG, where\\nWalter would sign off. The rate inflation added up: Between 2009 and 2011,\\nthe Foundation got roughly $240,000 for education expenses, while paying its\\nteachers less than $130,000.\\n The Learning Center’s transportation costs tell a similar story. The\\nvendor agreement did not set a unit rate for transportation, but the Learning\\nCenter charged one: at least $10, and sometimes as high as $17, per student\\nfor round-trip transportation to and from the Learning Center in vans. The\\ndesignated pick-up areas were mostly in Jasper, and the few in surrounding\\ncommunities were no more than 5–10 miles away. But the reimbursement\\nrates meant the Foundation received, in one of the most extreme instances,\\nnearly $7,500 for four days of transportation costs. Between 2008 and 2011,\\nthe Foundation billed north of $200,000 for transportation despite paying less\\nthan $30,000 in transportation-related expenses. The government\\nacknowledges that those numbers do not include amounts paid to drivers, but\\nLearning Center workers who drove the vans were paid around $8 an hour—\\nnowhere near enough to account for the $170,000 discrepancy.\\n Case Management: The vendor agreement set rates for case management\\nat, as with education, between $48 and $144 per hour. But one case manager\\n 4\\n\\f Case: 18-40521 Document: 00515011481 Page: 5 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\ntestified he was paid just $10 an hour, and another testified she was paid $27.\\nBetween 2009 and 2011, the Foundation received $150,000 for case\\nmanagement expenses but paid case managers just $82,000.\\n 2009 “Closeout”: In 2009, the Foundation sought and received a\\n“closeout” payment of $245,000 for unreimbursed expenses. That included a\\n$116,000 request for the Foundation’s 2008 payroll expenses. But this was\\ndouble billing—the Foundation had already billed for payments to its workers\\nthroughout 2008.\\n 2010 Conference: Walter’s church held annual conferences, which one\\nwitness described as akin to revivals. In addition to worship, the conferences\\nfeatured workshops on topics like single parenting and credit repair. For its\\n2009 conference, the Foundation sought and received reimbursement for 186\\n“units” of training (each workshop attended was a unit, and some attendees\\nwent to more than one workshop) at $48 each—a total reimbursement just shy\\nof $9,000. By way of supporting documentation, the Foundation submitted the\\nattendees’ sign-in sheets, which reflected the workshops they went to.\\n For the 2010 conference, the Foundation got more than four times as\\nmuch: $39,000. But the supporting documentation was a fabrication; it was a\\ncopy of the 2009 sign-in sheets with just a few additions. The purported\\nattendees were the same, and the tops of both sets read “Annual Conference\\nJuly 7-11, 2009.” The difference was that some of the “2010” sign-in sheets had\\nblank spots filled in to make it look like attendees went to additional\\nworkshops as well as those they attended in 2009.\\n 2012 Conference: At its 2012 conference, the church performed health\\nscreenings. The screening equipment (cholesterol machines and glucometers\\nthat could be used any number of times, plus one-time-use blood sugar test\\nstrips) cost about $750. But the Foundation sought and received\\nreimbursement at $144 for each of 61 people screened, or $8,784 total.\\n 5\\n\\f Case: 18-40521 Document: 00515011481 Page: 6 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n Where did the extra money go? Walter, Anita, and Rosie used it for\\npersonal expenses. Over 99% of the money in the Foundation’s accounts was\\nfrom hurricane relief. The Foundation transferred hundreds of thousands of\\nthose dollars into the New Lighthouse Church’s accounts. And money in the\\nchurch accounts went to pay the defendants’ credit card bills, to write checks\\nto cash or to family members, and to pay for other personal expenses.\\n The grand jury charged Walter with conspiracy to commit wire fraud,\\neleven counts of wire fraud, two counts of theft from a program receiving\\nfederal funds, and three counts of money laundering. It charged Rosie with\\nthe conspiracy count, ten counts of wire fraud, and a money laundering count.\\nAnita was charged with only the conspiracy count. The jury convicted on all\\ncounts. The district court sentenced Walter to 108 months. Rosie and Anita\\nreceived below-Guidelines sentences of 54 months. The district court also\\nimposed terms of supervised release for each defendant and ordered Walter to\\npay $1.33 million in restitution, with Rosie and Anita jointly and severally\\nliable for just over $970,000.\\n II.\\n Each defendant argues that the government’s evidence was insufficient\\nto find them guilty. We review the evidence “in the light most favorable” to the\\nverdict. United States v. Miles, 360 F.3d 472, 476–77 (5th Cir. 2004). We must\\naffirm the verdict unless no rational jury could have found the defendants\\nguilty beyond a reasonable doubt. United States v. Njoku, 737 F.3d 55, 62 (5th\\nCir. 2013).\\n A.\\n Walter challenges the sufficiency of the evidence for each count. We\\nbegin with his arguments that go to all counts and then consider his challenges\\nto individual ones.\\n\\n\\n 6\\n\\f Case: 18-40521 Document: 00515011481 Page: 7 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n Walter does not dispute that the Foundation asked for and received more\\nthan its expenses, but contends that doing so was allowed for two reasons.\\nFirst, he argues that the Foundation charged rates set by its vendor agreement\\nwith DETCOG. But the jury had good reason to see the vendor agreement as\\npart of the fraud, not a defense to it (to say nothing of the fact that it set rates\\nfor teachers and case managers but not, for instance, for transportation or\\nhealth screenings). Walter’s idea appears to be that negotiated rates cannot\\nbe fraudulently inflated. But he was essentially on both sides of the\\nagreement—this was not an arm’s length negotiation. Walter signed the\\nvendor agreement for DETCOG in his capacity as executive director; he had\\nthe last word on the rates and on one occasion rejected an attempt by DETCOG\\nemployees to lower them. On the other side of the vendor agreement, while\\nWalter did not sign on the Foundation’s behalf (its president, R.C. Horn, did),\\nWalter was the founder of the Foundation, had signature authority over its\\nbank accounts, and pastored the church out of which it operated. There is also\\nevidence that he held substantial sway over Horn. Walter thus controlled the\\nagreed rates. That made the scheme a more sophisticated one, not a lawful\\none.\\n Walter’s other argument for why the Foundation was allowed to bill\\nabove costs is based on federal guidance on how nonprofits should treat\\noverhead costs. The contract between the Commission and DETCOG cites an\\nOMB circular on accounting principles for nonprofits, which says that\\noverhead costs may be allocated to reimbursements for services rendered\\nunder a grant. See OFFICE OF MGMT. & BUDGET, CIRCULAR NO. A-122, Cost\\nPrinciples for Non-Profit Organizations, at 7 (2004) (allowing allocation of costs\\nthat are “necessary to the overall operation of the institution, although a direct\\nrelationship to any particular cost objective cannot be shown.”). But even if\\nsome of the Foundation’s rate inflation was to cover overhead costs allocated\\n 7\\n\\f Case: 18-40521 Document: 00515011481 Page: 8 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nto the hurricane-relief grants, there is no reason to think that accounted for\\nreimbursements so far above what the Foundation paid for those services.\\nPlus, no one contemporaneously believed DETCOG was reimbursing the\\nFoundation in part for overhead. One of DETCOG’s managers for block-grant\\nfunds testified that DETCOG employees understood that reimbursements\\ncould not exceed a vendor’s actual costs for services. Similarly, a memo from\\nDETCOG’s controller instructed that the Foundation’s “hourly rate for\\neducation services and case management should not exceed actual costs.” The\\nFoundation’s reimbursement requests, too, purported to bill for the “cost” of\\nparticular “allowable services,” without any indication that overhead was\\nincluded. The jury reasonably rejected Walter’s overhead-cost defense.\\n Before getting into Walter’s count-specific arguments, we address one\\nmore generally applicable issue: intent to defraud. Insufficient evidence of that\\nintent would undermine most of Walter’s convictions. 2 But there is plenty.\\nWalter was the pastor of the church out of which the Foundation operated and\\nsometimes paid the Foundation’s employees. So there is good reason to\\nconclude that Walter knew both what employees were being paid and at least\\nthe approximate costs of other services the Foundation provided. He\\nnevertheless certified to the Commission that the Foundation’s paperwork\\n(which included inflated rates) justified the reimbursements. In one instance\\nparticularly revealing of Walter’s intent, DETCOG employees grew concerned\\nduring 2009 about the Foundation’s reimbursement rates. They decided to\\nreduce them, but Walter instructed that they be put “back the way they were.”\\n\\n\\n\\n 2 See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014) (fraud conspiracy\\nunder 18 U.S.C. § 1349 requires proof of intent to defraud); United States v. Hoffman, 901\\nF.3d 523, 545 (5th Cir. 2018) (same for substantive wire fraud). Walter’s money laundering\\nconvictions required that the funds he transacted came from a “specified unlawful activity.”\\n18 U.S.C. § 1957. The grand jury alleged the fraud conspiracy as that activity, so those\\nconvictions also require intent to defraud.\\n 8\\n\\f Case: 18-40521 Document: 00515011481 Page: 9 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nIt is hardly surprising that Walter wanted to keep the overbilling gap; he was\\nits main beneficiary. Roughly $400,000 went from the Foundation to the\\nchurch accounts, out of which Walter paid over $150,000 in credit card bills,\\npaid off a $40,000 loan to an entity run by Walter and his son, and made\\nnumerous checks out to family members and to cash. The evidence paints a\\ncompelling picture of Walter’s intent to defraud.\\n Moving on to his to count-specific arguments, Walter argues that the\\nemail that is the interstate wire for his first wire fraud count—one he sent\\nconditionally approving reimbursement for the church’s 2010 annual\\nconference—did not involve a misrepresentation. This misunderstands the\\nwire requirement. The wire “need not contain a falsehood”; it need only further\\nthe fraud scheme (which itself must involve lies). United States v. Hoffman,\\n901 F.3d 523, 545–46 (5th Cir. 2018). The Count 2 email advanced the fraud\\nas it put the Foundation one step closer to obtaining government funds for the\\n2010 conference. See id. at 547 (holding that an email that was “a step in\\nverifying” costs submitted to the government furthered a fraud scheme). And\\nwe have already explained that the overall fraud scheme contained numerous\\nmisrepresentations related to costs, including the ultimate submission of\\nfabricated paperwork to support requests related to the 2010 conference.\\n Walter’s other ten wire fraud convictions involve interstate transfers\\nfrom the church’s main bank account to his credit cards. These likewise\\nfurthered the fraud. Indeed, to the fraudster, obtaining the proceeds is not just\\npart of the fraud, it is the reason for it. See United States v. Vilar, 729 F.3d 62,\\n95 (2d Cir. 2013) (“In as much as [the defendant] used the wire transfers to\\nsend the money to his own account, the wire transfers were undoubtedly in\\nfurtherance of the scheme to defraud.”). There is sufficient evidence for all the\\nwire fraud convictions.\\n\\n\\n 9\\n\\f Case: 18-40521 Document: 00515011481 Page: 10 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n Next, Walter disputes his two convictions for theft from a program\\nreceiving federal funds. That crime occurs when an agent of a federally funded\\nentity steals or “knowingly converts” at least $5,000 of the organization’s\\nproperty. 18 U.S.C. § 666(a)(1)(A). The first of these counts was based on the\\n2010 conference (the one with the fabricated sign-in sheets), and the second\\nwas based on the 2012 conference (the one with the health screenings). As to\\nthe 2010 conference, we reject Walter’s argument that he was unaware of the\\nphony documentation. Along with the evidence generally showing that Walter\\norchestrated the overbilling scheme, Walter approved reimbursements for both\\nthe 2009 and 2010 conferences despite the nearly identical supporting\\npaperwork. When the $39,000 in federal funds arrived at the Foundation,\\nWalter promptly wrote a $39,000 check to the church days later.\\n For the 2012 conference, Walter instructed the Foundation’s president\\n(Horn) to cut a $7,500 check to a health service run by Walter’s sister as part\\nof the reimbursement. Horn did as he was told, but Walter deposited the check\\ninto the main church account, which he essentially used as a personal account.\\nThat conversion, combined with the evidence that the Foundation received\\nover $8,000 in reimbursement for health screenings that cost it less than\\n$1,000, supports the conviction.\\n We last address Walter’s money laundering convictions. A section 1957\\ncrime occurs when a defendant engages in a financial transaction with\\nproperty worth over $10,000, knowing that the property was derived from\\nunlawful activity. United States v. Alaniz, 726 F.3d 586, 602 (5th Cir. 2013).\\nThe statute does not require concealment of funds, id., so Walter’s objection on\\nthat ground fails. But his argument that the charged funds did not come from\\nunlawful activity (or at least that he did not know that) do target an element\\nof the offense. We consider those objections to each count.\\n\\n\\n 10\\n\\f Case: 18-40521 Document: 00515011481 Page: 11 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n The first money laundering count involves deposits Walter made\\nfollowing the 2010 conference. We have already addressed Walter’s knowledge\\nof the fabrication underlying that reimbursement. When, armed with that\\nknowledge, Walter deposited the $39,000 check from the Foundation he\\nviolated section 1957.\\n The next two counts relate to the 2009 “closeout” reimbursement, the one\\nthat double billed for the Foundation’s 2008 payroll. Walter used some of these\\nfederal funds to purchase CDs, which he later cashed and deposited back into\\nthe church account. For the reasons we have already recited demonstrating\\nWalter’s involvement in, indeed leadership of, the fraud, the jury could find\\nthat he was not oblivious to the unlawful source of these funds. Walter’s\\ntransactions with the closeout funds support his section 1957 convictions. 3\\n We uphold each of Walter’s convictions.\\n B.\\n We now move to Anita, who was charged and convicted only of\\nconspiracy. We have already explained that the evidence supports the jury’s\\nfinding that Walter orchestrated a scheme to defraud. The sufficiency question\\nfor Anita is whether she agreed to participate in it, with the intent that it\\nsucceed. See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014).\\n Direct evidence of an agreement to commit a crime is rare, so\\ncircumstantial evidence often proves a conspiracy. There is enough of that type\\n\\n\\n 3Walter’s deposits into the church’s bank account were “monetary transactions” under\\nsection 1957. See 18 U.S.C. § 1957(f)(1). And although Walter does not raise the issue of\\ndistinguishing the proceeds of the fraud from the subsequent deposits of those proceeds, we\\nnote that the fraud was complete once the overbilled funds hit the Foundation’s account, over\\nwhich Walter had signature authority. See United States v. Leahy, 82 F.3d 624, 635 (5th Cir.\\n1996) (“Fraudulent schemes produce proceeds, ‘at the latest when the scheme succeeds in\\ndisgorging the funds from the victim and placing them into the control of the perpetrators.’”\\n(quoting and emphasizing United States v. Allen, 76 F.3d 1348, 1361 (5th Cir. 1996)). The\\nfraud got the money into the Foundation’s account; the money laundering got it into the\\nchurch’s.\\n 11\\n\\f Case: 18-40521 Document: 00515011481 Page: 12 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nof evidence here—in the form of concerted action, knowledge of the fraud, and\\nprofiting from it—to support the conviction. Anita and Walter worked together\\nto make the overbilling happen: Anita administered the Learning Center,\\nsubmitting the inflated reimbursement requests, which Walter signed off on.\\nSee United States v. Curtis, 635 F.3d 704, 719 (5th Cir. 2011) (noting that\\n“concerted action” is evidence of agreement). Anita knew about the overbilling.\\nAs the person overseeing the Learning Center, Anita could see both sides of\\nthe ledger. She authorized pay for teachers, signed checks for fuel, and knew\\nwhat the drivers were paid. But she requested reimbursement at higher “cost\\nper unit” rates. Last but not least, she benefitted from the fraud, using the\\nproceeds to pay for her car and rent among other things. See id. at 719\\n(recognizing that receiving a substantial share of a fraud conspiracy’s proceeds\\nis evidence of involvement). The jury reasonably found Anita guilty of\\nconspiracy.\\n C.\\n Rosie challenges her convictions for conspiracy and wire fraud. Her case\\nis closer than Anita’s. Both were supervisors at the Learning Center, and there\\nis evidence that Rosie too knew what its actual costs were. Yet unlike with\\nAnita, there is no evidence that Rosie handled reimbursement requests. That\\nis, while Anita knew and facilitated both sides of the ledger, Rosie appears only\\nto have participated in the Learning Center’s operations, not its funding.\\n But as long as the evidence supports a reasonable inference that Rosie\\nknew of the overbilling scheme, her “minor participation” in it can support her\\nconvictions. United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009). Rosie\\nwas at the Learning Center daily and told employees what to do. She made\\nhiring decisions and ran staff meetings. Rosie was thus integrally involved in\\nthe functioning of the Learning Center, without which a substantial portion of\\nthe overbilling scheme would not have been possible. If Rosie knew that Anita\\n 12\\n\\f Case: 18-40521 Document: 00515011481 Page: 13 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nwas submitting inflated reimbursement requests for Walter to sign off on, the\\njury could conclude from her supervision of the Learning Center that she had\\nagreed to help facilitate the fraud.\\n Although the proof of Rosie’s knowledge is weaker than it is for the other\\ndefendants, it is enough for us to uphold the verdict of the jury that sat through\\nthis nine-day trial. Rosie was married to one conspirator, and her daughter\\nwas another. Those family ties are insufficient on their own to prove she joined\\nthe conspiracy, but they are one factor that can be considered along with other\\nindications that she knew about the fraud. United States v. Willett, 751 F.3d\\n335, 340 (5th Cir. 2014). Foremost among that additional evidence, Rosie knew\\nthat hurricane money was travelling from DETCOG into the church accounts,\\nwhich she then used for personal expenses. Rosie admitted that she knew\\nWalter ran DETCOG and that the Foundation got grant funds from DETCOG.\\nShe also knew that money in the church accounts came from the Foundation;\\non one occasion, she deposited a $30,000 check from the Foundation into the\\nchurch’s youth department account. She had signature authority on that\\naccount, almost all the money in which came from the Foundation, as well as\\nthe church’s main account. The jury could infer from her access to those\\naccounts that she knew the church received hundreds of thousands of dollars\\nfrom the Foundation.\\n She also benefitted from the fraud. In addition to what she derived from\\nWalter’s use of proceeds to pay credit card bills, Rosie made around $13,000 in\\ncell phone payments (among others) from the youth department account. She\\nalso made $15,500 in credit card payments from the account for her ministry,\\n“Heart to Heart,” where nearly all the money came from the youth department\\n\\n\\n\\n\\n 13\\n\\f Case: 18-40521 Document: 00515011481 Page: 14 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\naccount. 4 In the absence of overbilling, there would have been no money left\\nover for personal expenses like these. Rosie’s awareness and use of the extra\\ncash coming from the Foundation supports the inference that she knew the\\nFoundation was overbilling.\\n Statements Rosie made to the FBI could also be one of the puzzle pieces\\nthat the jury concluded fit together to show guilt. When asked about Walter’s\\nrole at the Foundation, Rosie said that Walter had nothing to do with it beyond\\nproviding advice when requested, and specifically that Walter did not help the\\nFoundation get any grant money. She also said that the money in the Heart\\nto Heart account came from donations—that is, not the Foundation. The jury\\ncould have taken those false statements to indicate that Rosie knew she ought\\nto hide her awareness of the scheme. See United States v. Villarreal, 324 F.3d\\n319, 325 (5th Cir. 2003).\\n We uphold each of Rosie’s convictions.\\n III.\\n Only Rosie appeals the prison time she received. She argues that the\\ndistrict court misapplied a two-level enhancement added when “the offense\\ninvolved . . . a misrepresentation that the defendant was acting on behalf of a\\ncharitable, educational, religious, or political organization, or a government\\nagency.” U.S.S.G. § 2B1.1(b)(9)(A). The enhancement clearly applies if a\\ndefendant lied about having any connection to a listed organization. Less\\nobviously, it also applies if a defendant had authority to act for a charity but\\ndiverted some of the funds the nonprofit received for “personal gain.” Id. cmt.\\n\\n\\n\\n\\n 4 These credit card and phone payments were the bases for Rosie’s ten individual wire\\nfraud convictions. As we find enough evidence that she joined the scheme to defraud, these\\npayments were one way she received the benefit of that fraud. They thus furthered the\\nscheme and support her wire fraud convictions. See Vilar, 729 F.3d at 95.\\n 14\\n\\f Case: 18-40521 Document: 00515011481 Page: 15 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nn.8(B); see United States v. Reasor, 541 F.3d 366, 372 (5th Cir. 2008). That is\\nthe basis for the enhancement here.\\n Rosie argues that although Walter solicited funds for DETCOG, and\\nAnita solicited funds for the Learning Center, she never solicited funds so could\\nnot have made a covered misrepresentation. This ignores that the Guidelines\\nhold Rosie responsible for the foreseeable acts of her coconspirators. U.S.S.G.\\n§ 1B1.3(a)(1)(B). The requests for government funds were foreseeable, indeed\\nintegral, parts of the conspiracy. As we have upheld Rosie’s conviction as a\\ncoconspirator, Walter’s and Anita’s solicitations are attributable to her. There\\nwas no Guidelines error.\\n IV.\\n Each defendant challenges the four special conditions of supervised\\nrelease listed in their judgments. These conditions require each defendant to:\\n(1) “pay any financial penalty that is imposed by the judgment”; (2) “provide\\nthe probation officer with access to any requested financial information for\\npurposes of monitoring restitution payments and employment”; (3) “not incur\\nnew credit charges or open additional lines of credit without the approval of\\nthe probation officer” until full payment is made; and (4) “not participate in\\nany form of gambling” until full payment is made. The defendants’ objection\\nis that the district court did not officially recite these conditions at sentencing.\\nInstead, the judge told them that the conditions recommended in their\\nPresentence Reports, which included the four special conditions, would be\\nconditions of their supervised release. He even identified the page numbers of\\nthe PSRs listing the conditions. The government nonetheless concedes that by\\nfailing to “orally recite the special conditions one by one,” the district court\\nerred, warranting removal of the four special conditions from the defendants’\\njudgments.\\n\\n\\n 15\\n\\f Case: 18-40521 Document: 00515011481 Page: 16 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\n The requirement that a judge orally state a sentence is a product of the\\ndefendant’s constitutional right to be present at sentencing. United States v.\\nMartinez, 250 F.3d 941, 942 (5th Cir. 2001). To preserve that right, the oral\\npronouncement controls over a conflicting written judgment. United States v.\\nMudd, 685 F.3d 473, 480 (5th Cir. 2012). A true conflict is not required;\\nincluding an unpronounced aspect of the sentence in the written judgment may\\n“broaden” the oral sentence and thus “conflict” with it. United States v. Rivas-\\nEstrada, 906 F.3d 346, 350 (5th Cir. 2018). We have been strict about this\\nrequirement, recently holding that a district court abused its discretion in\\ntelling the defendant only that the conditions listed in the PSR would be\\nimposed. Id. at 350–51.\\n Rivas-Estrada is difficult to reconcile with older caselaw holding that\\nwritten notice of the conditions at sentencing suffices. See United States v.\\nRouland, 726 F.3d 728, 734 (5th Cir. 2013) (upholding practice in which the\\ngovernment moves at sentencing to admit an exhibit listing special conditions,\\neven though the court does not individually recite them); see also United States\\nv. Al Haj, 731 F. App’x 377, 379 (5th Cir. 2018) (finding no error when\\ndefendant signed a paper listing the conditions). The need for notice underlies\\nthe oral pronouncement requirement. Rouland, 726 F.3d at 733–34 (5th Cir.\\n2013). 5 When a sentencing judge makes no mention, either directly or\\nindirectly, of a condition, the lack of notice deprives the defendant of an\\n\\n\\n\\n\\n 5 More precisely, whether the defendant had notice of a special condition determines\\nthe standard of review. Without adequate notice, discrepancies between the written\\njudgment and the oral pronouncement are reviewed for abuse of discretion; with it, they are\\nreviewed for plain error. Rivas-Estrada, 906 F.3d at 348–49; Rouland, 726 F.3d at 733–34.\\nBut this determination is the “critical” one. Rivas-Estrada, 906 F.3d at 348; see Rouland,\\n726 F.3d at 734 (accepting defendant’s concession that an unpronounced special condition did\\nnot affect his substantial rights, as necessary for reversal under plain error review).\\n 16\\n\\f Case: 18-40521 Document: 00515011481 Page: 17 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nopportunity to object. But the defendant has that opportunity when the court\\nreferred to a list of the conditions being imposed. Id. at 734.\\n The only difference between this case and Rouland is that the referenced\\nlists of the Diggles’ conditions were their Presentence Reports rather than a\\nseparate document. It is hard to see why that makes a difference. But see\\nRivas-Estrada, 906 F.3d at 349–50 (framing the district court in Rouland as\\nhaving done “more than the minimum” by offering a “unique chance to object”).\\nOne of the first questions a court typically asks at sentencing is whether the\\ndefendant has reviewed the PSR. The court followed that standard script in\\nthis case. As the key sentencing document, the PSR is also available at the\\nhearing. The defendant thus has written notice of the conditions and an\\nopportunity to object both when a court refers to a list in the PSR (especially\\nwhen it does so by page number as happened here) and when it refers to\\nRouland’s separate exhibit listing the conditions.\\n But we are bound to follow Rivas-Estrada’s view that referring to the\\nPSR is not enough, which is why the government concedes. We are not,\\nhowever, required to follow the government’s overall concession on this issue.\\nUnited States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). Our “independent\\nreview,” id., reveals no conflict between the oral sentence and the written one\\nfor three of the disputed special conditions. One of them is so obviously in tune\\nwith the oral sentence that it cannot be said to have created a conflict. Two\\nothers, despite being described as special conditions, are actually standard\\nconditions (though one needs a slight adjustment). And an unannounced\\nstandard condition does not create a conflict. Rivas-Estrada, 906 F.3d at 348.\\n At this point, some background on the types of supervised release\\nconditions is useful. Mandatory conditions are required by statute. U.S.S.G.\\n§ 5D1.3(a). Standard conditions are “recommended” in all circumstances. Id.\\n§ 5D1.3(c). As both are “implicit in the very nature of supervised release,” they\\n 17\\n\\f Case: 18-40521 Document: 00515011481 Page: 18 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nare presumed to be part of the judgment and need not be orally pronounced.\\nUnited States v. Torres-Aguilar, 352 F.3d 934, 936 (5th Cir. 2003) (quoting\\nUnited States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999)). In contrast, special\\nconditions are ones that “may be appropriate” on a case-by-case basis, U.S.S.G.\\n§ 5D1.3(d), and that ad hoc applicability warrants putting defendants on notice\\nat sentencing by reading special conditions aloud.\\n The key is that sometimes a condition labeled special is really a standard\\ncondition. See Rouland, 726 F.3d at 735 (“[S]pecial conditions may be\\ntantamount to standard conditions under the appropriate circumstances,\\nthereby precluding the need for an oral pronouncement.”). Aside from being\\npotentially “appropriate” in any case, the special conditions in section 5D1.3(d)\\nare “recommended” in certain circumstances. And when a condition is\\nrecommended, it is essentially a standard condition and thus need not be orally\\npronounced. Torres-Aguilar, 352 F.3d at 937–38. That the Guidelines would\\nstill call that condition special is “irrelevant.” Id. at 937 (quoting United States\\nv. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002)).\\n Under this principle, the access-to-financial-information condition is a\\nstandard condition. It is recommended by section 5D1.3(d) when restitution is\\nordered, which it was for each defendant. U.S.S.G. § 5D1.3(d)(3). As a result,\\nthe district court did not err in failing to recite this standard condition at\\nsentencing.\\n The Guidelines also recommend a no-new-credit condition when\\nrestitution is ordered. U.S.S.G. § 5D1.3(d)(2). So a prohibition on new credit\\nwas implicit in the defendants’ oral sentences. But the Guidelines version\\nprohibits new credit “unless the defendant is in compliance with the payment\\nschedule.” Id. The defendants’ written judgments set up a monthly payment\\nschedule but, in contrast to the Guidelines, prohibit new credit “unless\\npayment . . . has been made in full.” The written judgments thus broaden the\\n 18\\n\\f Case: 18-40521 Document: 00515011481 Page: 19 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\nextent of the prohibition; under the Guidelines version, the defendants could\\nopen new lines of credit so long as they keep up with their payments, but under\\nthe written judgment, they can open new lines of credit only once they pay the\\nfull amount of restitution. We remand for the district court to reform the\\nwritten no-new-credit condition to match the one implied by the oral sentence\\nof restitution—that is, the Guidelines version. See United States v. Mireles,\\n471 F.3d 551, 558 (5th Cir. 2006) (“If a conflict exists, the appropriate remedy\\nis remand to the district court to amend the written judgment to conform to\\nthe oral sentence.”).\\n As for the condition requiring payment of financial penalties, we do not\\nsee how it could conflict with an oral sentence imposing those penalties. See\\nUnited States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (explaining that a\\nwritten condition does not conflict with an unpronounced condition if the\\ncondition “is clearly consistent with the district court’s intent . . . as evidenced\\nin the statements made by the court at the sentencing hearing”). Requiring a\\ndefendant to make those payments is consistent with, if not essential to, those\\npenalties. Indeed, a “special” condition requiring payment of restitution is\\nlargely unnecessary. Making restitution payments is a mandatory condition\\nof supervised release, as the defendants’ written judgments also reflect.\\nU.S.S.G. § 5D1.3(a)(6). This may show that the “special” condition was for the\\nmost part redundant (it just adds payment of the special assessment, an\\namount that pales in comparison to restitution), but it also shows that it does\\nnot conflict with the rest of the sentence.\\n We do, however, vacate the no-gambling condition. The Guidelines do\\nnot include it as a condition recommended if restitution is ordered. And\\nforbidding gambling is not so “clearly consistent” with an oral pronouncement\\nof restitution as to be reasonably encompassed within that pronouncement.\\nContrast Warden, 291 F.3d at 365 (holding that a written condition requiring\\n 19\\n\\f Case: 18-40521 Document: 00515011481 Page: 20 Date Filed: 06/26/2019\\n\\n\\n\\n No. 18-40521\\ndefendant to pay for drug treatment was clearly consistent with a pronounced\\ncondition requiring the defendant to get drug treatment).\\n * * *\\n We AFFIRM the judgments of conviction, VACATE the “no-new-credit”\\nand “no-gambling” conditions for the supervised release terms, and REMAND\\nfor the district court to amend its written judgments by (1) reforming the no-\\nnew-credit condition to conform to section 5D1.3(d)(2) of the Guidelines, and\\n(2) removing the no-gambling condition.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2472,"cells":{"id":{"kind":"number","value":8444030,"string":"8,444,030"},"name":{"kind":"string","value":"IN RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated Bon Secour Fisheries, Incorporated Fort Morgan Realty, Incorporated LFBP 1, L.L.C., doing business as GW Fins Panama City Beach Dolphin Tours & More, L.L.C. Zekes Charter Fleet, L.L.C. William Sellers Kathleen Irwin Ronald Lundy Corliss Gallo John Tesvich Michael Guidry, on behalf of themselves and all others similarly situated Henry Hutto Brad Friloux Jerry J. Kee v. BP Exploration & Production, Incorporated BP America Production Company BP, P.L.C."},"name_abbreviation":{"kind":"string","value":"Bon Secour Fisheries, Inc. v. BP Exploration & Prod., Inc. (In re Deepwater Horizon)"},"decision_date":{"kind":"string","value":"2019-06-26"},"docket_number":{"kind":"string","value":"No. 17-30727"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Graves, Oldham\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415467/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"GRAVES"},"judge2":{"kind":"string","value":"OLDHAM"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444030/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: IN RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated Bon Secour Fisheries, Incorporated Fort Morgan Realty, Incorporated LFBP 1, L.L.C., doing business as GW Fins Panama City Beach Dolphin Tours & More, L.L.C. Zekes Charter Fleet, L.L.C. William Sellers Kathleen Irwin Ronald Lundy Corliss Gallo John Tesvich Michael Guidry, on behalf of themselves and all others similarly situated Henry Hutto Brad Friloux Jerry J. Kee v. BP Exploration & Production, Incorporated BP America Production Company BP, P.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: IN RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated Bon Secour Fisheries, Incorporated Fort Morgan Realty, Incorporated LFBP 1, L.L.C., doing business as GW Fins Panama City Beach Dolphin Tours & More, L.L.C. Zekes Charter Fleet, L.L.C. William Sellers Kathleen Irwin Ronald Lundy Corliss Gallo John Tesvich Michael Guidry, on behalf of themselves and all others similarly situated Henry Hutto Brad Friloux Jerry J. Kee v. BP Exploration & Production, Incorporated BP America Production Company BP, P.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2473,"cells":{"id":{"kind":"number","value":4633669,"string":"4,633,669"},"name":{"kind":"string","value":"SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee v. ARCTURUS CORPORATION; Aschere Energy, L.L.C.; Leon Ali Parvizian, Also Known as Alex Parvizian; Robert J. Balunas; R. Thomas & Co., L.L.C.; Alfredo Gonzalez; AMG Energy, L.L.C., Defendants - Appellants"},"name_abbreviation":{"kind":"string","value":"SEC. & Exch. Comm'n v. Arcturus Corp."},"decision_date":{"kind":"string","value":"2019-06-27"},"docket_number":{"kind":"string","value":"17-10503"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Stewart, Dennis, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"CARL E. STEWART, Chief Judge\", \"type\": \"010combined\", \"text\": \"Case: 17-10503 Document: 00515013011 Page: 1 Date Filed: 06/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 17-10503 FILED\\n June 27, 2019\\n\\nSECURITIES AND EXCHANGE COMMISSION, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nARCTURUS CORPORATION; ASCHERE ENERGY, L.L.C.; LEON ALI\\nPARVIZIAN, also known as Alex Parvizian; ROBERT J. BALUNAS; R.\\nTHOMAS & CO., L.L.C.; ALFREDO GONZALEZ; AMG ENERGY, L.L.C.,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nCARL E. STEWART, Chief Judge:\\n IT IS ORDERED that our prior panel opinion, Securities and Exchange\\nCommission v. Arcturus Corporation, 912 F.3d 786 (5th Cir. 2019), is\\nWITHDRAWN and the following opinion is SUBSTITUTED therefor.\\n The Defendants—Leon Ali Parvizian, Alfredo Gonzalez, Robert J.\\nBalunus, Arcturus Corp., Aschere Energy, LLC, R. Thomas & Co., LLC, and\\nAMG Energy, LLC—sold interests in several oil and gas drilling projects to\\ninvestors. They never registered the interests as securities. The SEC called\\nfoul and filed this civil enforcement action. Because the Defendants failed to\\nregister interests in their drilling projects as securities, the SEC alleged that\\n\\f Case: 17-10503 Document: 00515013011 Page: 2 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nthey violated Sections 10(b) and 15(a) of the Securities Exchange Act\\n(“Exchange Act”), 15 U.S.C. §§ 78j(b), 78o(a), Rule 10b-5, 17 C.F.R. § 240.10b-\\n5, and Sections 5(a), 5(c), and 17(a) of the Securities Act (“Securities Act”), 15\\nU.S.C. §§ 77e(a), 77e(c), 77q(a). After roughly a year and a half of discovery,\\nboth parties filed motions for summary judgment. The district court granted\\nthe SEC’s motion, holding that the oil and gas interests qualified as securities.\\nThe Defendants now appeal. Because the Defendants raised significant issues\\nof material fact, we reverse the district court’s decision and remand for trial.\\n I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY\\n A. FACTUAL BACKGROUND\\n This case involves seven defendants, three individuals—Leon Ali\\nParvizian, Alfredo Gonzalez, and Robert J. Balunus—and four companies—\\nArcturus Corp., Aschere Energy, LLC, R. Thomas & Co., LLC, and AMG\\nEnergy, LLC. Parvizian started three of the companies—Arcturus, Aschere,\\nand AMG. He was also primarily responsible for running Arcturus and\\nAschere. Parvizian also founded AMG, but passed management on to\\nGonzalez, who has served as president since 2010. Balunus started and\\nmanaged R. Thomas.\\n The Defendants offered and sold interests in six oil and gas drilling\\nprojects—Hillock, Piwonka, Conlee, Fraley-Nelson, Chips, and Wied Field.\\nEach project had a managing venturer that supervised and managed the day-\\nto-day operations. The managing venturer also earned management fees paid\\nby the project. Together, Arcturus and Aschere were the managing venturers\\nof all six projects—Arcturus managed four, and Aschere managed two. (We\\nrefer to Arcturus and Aschere, collectively, as the “Managers.”)\\n While Arcturus and Aschere managed the drilling projects, R. Thomas\\nand AMG were primarily responsible for marketing and selling interests in the\\n\\n\\n 2\\n\\f Case: 17-10503 Document: 00515013011 Page: 3 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nprojects. Neither company controlled or operated the drilling projects beyond\\nmarketing, and neither company registered as a broker.\\n R. Thomas entered into a consulting agreement with Aschere. Under the\\nagreement, R. Thomas earned a 12% commission on each new investor it\\nintroduced to the drilling projects. 1 AMG had a similar consulting agreement\\nwith Aschere, under which it offered and sold interests in all six joint ventures\\nin exchange for $500 per week for each AMG employee and a 12% commission\\non each venture unit sold.\\n 1. The Sales Process\\n When the Defendants were selling interests in the drilling projects, they\\nsought investors through a nationwide cold-calling campaign from 2007 to\\n2011. 2 Potential investors came from a lead list that Parvizian purchased. 3\\nThe Defendants also called previous investors about the drilling projects.\\n The record indicates that the full cold-call process involved multiple\\nconversations and multiple calls. (According to Alfredo Gonzalez, a former\\nAmerest salesperson, the process “might take 5 phone calls or it might take 15\\nphone calls.”) In the initial call, the salesperson would give a “short and sweet”\\n\\n\\n 1 We refer to the joint venturers as “investors.” This is only for convenience and does\\nnot reflect a legal judgment.\\n\\n 2 The majority of the information about the cold-call process came from SEC\\ninvestigative interviews. The SEC took these interviews before filing its lawsuit in 2013.\\n\\n 3There is little evidence about the lead list in the record, but several individuals made\\nstatements about the lead list in SEC investigative interviews. Robert Balunas, a former\\nsalesperson at Amerest Securities, a company that contacted potential investors for Arcturus,\\nstated that he had prior knowledge of and relationships with some of the investors his\\ncompany sent to Arcturus. He did not know anything about the lead lists used by Parvizian.\\nHe did state, however, that he only made offers to accredited investors.\\n\\n According to another person, the list might have included only accredited investors.\\nHe also suggested that salespeople called both new and current clients. Parvizian stated that\\nAMG Energy may have provided him with the lead list, but he was unsure.\\n\\n 3\\n\\f Case: 17-10503 Document: 00515013011 Page: 4 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nstatement, introducing himself and noting that he works for “a firm involved\\nin [sic] oil and gas exploration.” The salesperson would then ask if the\\nprospective investor had experience in oil and gas investing. If the investor\\ndid, the salesperson would ask if the prospective investor was interested in\\ninformation about a potential investment opportunity. If so, the salesperson\\nwould transfer the prospective investor to a “registered broker.” 4 Or if the\\nsalesperson was also a registered broker, then he would continue speaking\\nwith the prospective investor. If the prospective investor expressed further\\ninterest to the broker, the broker would have a receptionist send out\\ninformation.\\n Initially, Arcturus would send a one-page introduction letter, giving\\nbasic information about the company and ways to seek out additional\\ninformation. 5 This letter did not include any other materials. This process\\nwas designed to form a “substantive relationship” with the new client. If the\\nnew client expressed interest after additional calls, then Arcturus would send\\nout a group of signing documents. The Defendants distributed five primary\\nsigning documents: (1) a Confidential Information Memorandum (“CIM”),\\nwhich gave a detailed overview of the drilling project; (2) a copy of the Joint\\nVenture Agreement (“JVA”), which laid out the contractual rights and duties\\nof each party; (3) a screening questionnaire, which asked various questions\\nabout the investor’s education, investing history, and experience; (4) a Private\\n\\n\\n\\n 4Brokers could not communicate with potential investors in any other way. For\\nexample, they did not have access to email.\\n\\n 5 Brian William Bull, the former chief compliance officer for Amerest Securities,\\nsuggested that existing clients might not receive this introduction letter. It is unclear how\\nmany existing clients Arcturus had. Bull did state, however, that “many” investors “had been\\nclients for years.” It is unclear whether these investors were clients of Amerest, Arcturus, or\\nboth. But at least some of the eventual investors had been Parvizian’s clients for years.\\n\\n 4\\n\\f Case: 17-10503 Document: 00515013011 Page: 5 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nPlacement Memorandum (“PPM”), which was an advertising brochure for each\\ndrilling project with geological information, pricing, and potential returns; and\\n(5) a subscription agreement, which served as the investor’s application. After\\nsending these documents, a broker would make a follow-up call to ensure the\\nmaterials arrived and were all in order.\\n If the prospective investor decided to invest, then he would fill out\\n“paperwork that was included” in the materials, including the questionnaire.\\nArcturus would review the questionnaire to ensure that (1) the investor was\\naccredited and (2) the investment was suitable for the particular investor. This\\nreview included looking at the investor’s net worth and employment.\\nAccording to Balunas, the Defendants would also check on the potential\\ninvestor’s experience with oil and gas investing.\\n After reviewing these documents, the Defendants would sometimes call\\nprospective investors for additional information, though this would happen\\nless often for “repeat clients.” The Defendants would then request that each\\nprospective investor reverify their suitability information. Bull also suggested\\nthat they would seek other updates on each investor’s suitability from “time-\\nto-time.” If the investor did not qualify as an accredited investor, the\\nDefendants would reject the investor. 6 Both Bull and Billy Cooper, a former\\nArcturus employee, stated that the Defendants would reject non-accredited\\ninvestors, but Bull could not remember any specific rejections. Cooper also\\nbelieved that some of the projects may have had non-accredited investors.\\nParvizian disagreed and maintained that every investor was accredited.\\n\\n\\n\\n\\n 6 Even before rejecting an investor based on their questionnaire responses, Bull\\nindicated that they would sometimes reject prospective investors before sending out the\\nquestionnaire if it seemed like the investment would not be suitable.\\n 5\\n\\f Case: 17-10503 Document: 00515013011 Page: 6 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n 2. The Investors\\n Spread over the six projects, there were over 340 investors. 7 The record\\ndoes not contain much information about these investors. The record only\\ncontains direct evidence about the qualifications of roughly 25 investors,\\nleaving nearly 315 unaccounted for. But of the 25 investors about whom we\\nhave information, many had experience in the oil and gas field, direct\\nexperience with the Defendants, or both. One investor has prior experience\\nwith Orbit Energy. Another stated that he has “an engineering background”\\nand “participated in other energy ventures with Escondido and Patriot\\nEnergy.” Another stated that he has “done 83 of these projects over the last\\nten years.” Another stated that he has “extensive experience in investing in\\ndomestic energy and often defer[s] to the advice of [his] energy advisors and\\npetroleum engineers.” Another has “past experience in oil and gas with various\\npartial investment projects.” Another has “past experience in oil and gas with\\nCocoal and British Petroleum.” Another has “previous oil & gas experience\\nwith OG-7 Jay Pisquro.” Another “previously invested in three different oil\\ndrilling and exploration projects.” Another “previously invested in at least\\nseven different oil and gas drilling, exploration, and/or production projects,”\\nsome of which “were joint ventures which, like Arcturus, required active\\nparticipation and voting.” Another invested in two other drilling joint\\n\\n\\n 7The number of investors is uncertain. For example, one document, prepared by the\\nSEC, pegs the number at 380. The Defendants counted 341 investors. The Defendants,\\nthough, counted investors more than once if they invested in more than one joint venture.\\nFor example, if one investor took part in four joint ventures, he was counted four times. See\\nAnother document in the record counts 349 investors. That document, however, lists many\\ninvestors more than once.\\n\\n The parties also disagree on the number of investors per venture. According to the\\nDefendants’ count, there were 94 investors in Hillock, 61 in Piwonka, 59 in Conlee, 4 in\\nFraley-Nelson, 35 in Chips, and 88 in Wied Field. According to the SEC, there were 108\\ninvestors in Hillock, 57 in Piwonka, 71 in Conlee, 4 in Fraley-Nelson, 35 in Chips, and 105 in\\nWied Field.\\n 6\\n\\f Case: 17-10503 Document: 00515013011 Page: 7 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nventures. And another has “past experience in oil and gas with Choice\\nExploration.”\\n Besides those with oil and gas experience, at least five other investors\\nhave prior experience with the Defendants. Other investors had more general\\nbusiness experience. For example, one investor is a senior vice president at\\nCapitol One and manages an operating budget of $500,000,000. Another has\\ninvested millions in publicly traded stocks and “numerous” joint venture\\ninvestments.\\n Beyond these investors, the record contained information about five\\ninvestors who seemed to lack specialized experience.\\n Outside of this direct information about investors, the Defendants made\\na few global statements about the investors. Parvizian stated that every\\ninvestor was accredited. Balunas discussed the investors at length. He\\nrepeatedly emphasized that the investors were “sophisticated people.”\\nBalunas stated that many investors “had their CPAs or attorneys call” the\\nDefendants. And others personally visited the well or spoke with the drilling\\noperator or onsite drilling engineers. Bull assumed that some investors were\\nnew to oil and gas investment. But Cooper stated that “most of the people [he]\\nspoke to [had] invested in oil and gas before.”\\n 3. The Drilling Projects\\n The drilling projects were split into multiple stages. First, in the\\ncapitalization stage, the Defendants sought investors for each individual\\ndrilling project. According to the signing documents, investors collectively\\nwould pay a fixed price for a “Turnkey Drilling Contract.” The Manager of the\\ndrilling project would then use those funds to purchase a working interest in a\\nprospect well, which would entitle it to drill, test, and complete the well. The\\nworking interest also entitled the project to a share of the well’s net revenue.\\n\\n\\n 7\\n\\f Case: 17-10503 Document: 00515013011 Page: 8 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n After capitalization, the drilling project would begin initial operations.\\nInitial operations included the drilling and testing of the prospect well. The\\nManager of each drilling project was responsible for the initial operations.\\nAschere, for example, was responsible for managing the initial operations of\\nthe Conlee well. To complete the initial operations, the Manager would take\\nthe investors’ funds and subcontract with a drilling operator who would drill\\nand test the well. The operator for each project was identified in the\\ncorresponding CIM.\\n After drilling and testing the well, the Managers would recommend\\nwhether or not to complete the well. 8 The investors would then vote on the\\nrecommendation. If the investors voted in favor, then they would all be\\nrequired to pay a completion assessment, which covered the cost of entering\\ninto a “Turnkey Completion Contract.” If an investor did not pay the\\ncompletion assessment, he abandoned his interest in the well, did not pay any\\nfurther assessments, and had no right to any revenue.\\n After completion, the investors could elect, at the Manager’s\\nrecommendation, to engage in special operations. Special operations could\\ninclude drilling deeper, fracking, or completing additional zones in the well.\\nThese operations were subject to special assessments. The investors could also\\nchoose to engage in additional operations, which were subject to additional\\nassessments.\\n B. PROCEDURAL HISTORY\\n In December 2013, the SEC filed this civil enforcement action, alleging\\nthat the Defendants violated Section 5(a) and (c) of the Securities Act and\\nSection 17(a) of the Exchange Act. The SEC argued that interests in these\\n\\n\\n 8 “In simple terms, [completing a well means] the gas well moves from construction to\\nextraction phases.” JAMES T. O’REILLY, THE LAW OF FRACKING § 6:9 (2018). This process\\nusually includes placing equipment into the well and drawing out oil or gas.\\n 8\\n\\f Case: 17-10503 Document: 00515013011 Page: 9 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\ndrilling projects qualified as securities, and the Defendants tried to avoid\\nfederal securities laws by calling the projects joint ventures and labeling the\\ninvestors as partners. The Defendants argued that the projects were joint\\nventures because the investors had powers, rights, and management\\nobligations. Both parties filed motions for summary judgment, and the district\\ncourt granted the SEC’s motion.\\n The district court held that interests in the drilling projects were sold as\\nsecurities pursuant to SEC v. W.J. Howey Co., 328 U.S. 293 (1946). The parties\\nagreed that only one factor from Howey was in dispute—whether the investors\\nexpected to profit “solely from the efforts of” the Defendants. This factor is\\ngoverned by Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which sets out\\nthree factors for determining whether investors expect to profit solely from\\nthird-party efforts. The drilling interests qualified as securities for three main\\nreasons, which correspond to the three factors in Williamson. First, the district\\ncourt held that the investors had no real power to control the venture. Despite\\nhaving some powers in the JVAs, the court held that these powers were illusory\\nbecause the investors had no way of contacting each other, and the Defendants\\nwould not provide contact information. Without the ability to communicate,\\nthey could not amass the votes they needed to control the drilling projects.\\n Second, the court held that the investors were inexperienced and lacked\\nexpertise in the oil and gas field. The investors lacked experience, according\\nto the district court, because the Defendants marketed their drilling interests\\nthrough a broad cold-calling campaign. The investors were also forced to rely\\non the Defendants to acquire all of their information.\\n Third, the court held that the investors were reliant on the Defendants.\\nThe Defendants controlled all of the investors’ assets, and a replacement\\nmanager could not access those assets—only the Defendants could. The\\ninvestors also relied on the Defendants for all of their information.\\n 9\\n\\f Case: 17-10503 Document: 00515013011 Page: 10 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n II. DISCUSSION\\n This court reviews a district court’s grant of summary judgment de novo,\\nusing the same legal standard as the district court. Turner v. Baylor\\nRichardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Summary judgment\\nis appropriate where there is no genuine issue of material fact and the parties\\nare entitled to judgment as a matter of law. Id. All reasonable inferences must\\nbe drawn in favor of the nonmovant, but “a party cannot defeat summary\\njudgment with conclusory allegations, unsubstantiated assertions, or only a\\nscintilla of evidence.” Id. (internal quotation marks omitted).\\n Under Section 5 of the Securities Act, it is “unlawful for any person,\\ndirectly or indirectly” to use interstate commerce to offer to sell “any security”\\nunless the person has filed a “registration statement” for the security. 9 15\\nU.S.C. § 77e(c). The Securities Act broadly defines the term security to include\\na long list of financial instruments, including “investment contracts,” the type\\nof security at issue here. See 15 U.S.C. § 77b(a)(1). While Congress defined\\nthe term “security,” it left it to the courts to define the term “investment\\ncontract.” In Howey, the Supreme Court did exactly that and developed a\\n“flexible” test for determining whether an investment contract qualifies as a\\nsecurity:\\n [A]n investment contract for purposes of the Securities Act means\\n a contract, transaction or scheme whereby a person invests his\\n money in a common enterprise and is led to expect profits solely\\n from the efforts of the promoter or a third party . . . .\\nHowey, 328 U.S. at 298–99. Distilled to its elements, an investment contract\\nqualifies as a security if it meets three requirements: “(1) an investment of\\nmoney; (2) in a common enterprise; and (3) on an expectation of profits to be\\n\\n\\n\\n 9 It is undisputed that the Defendants never filed a registration statement for the\\ninterests in their drilling projects.\\n 10\\n\\f Case: 17-10503 Document: 00515013011 Page: 11 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nderived solely from the efforts of individuals other than the investor.”\\nWilliamson, 645 F.2d at 417–18 (citing SEC v. Koskot Int’l, Inc., 497 F.2d 473\\n(5th Cir. 1974)).\\n When applying this test, courts should disregard “legal formalisms” and,\\ninstead, focus on the substance of the deal—“the economics of the transaction\\nunder investigation.” Reves v. Ernst & Young, 494 U.S. 56, 61 (1990). Even\\nthough certain contracts might “superficially resemble private commercial\\ntransactions” and lack “the formal attributes of a security,” they still can\\nqualify as securities. Youmans v. Simon, 791 F.2d 341, 345 (5th Cir. 1986)\\n Here, the parties do not contest that the drilling interests met the first\\ntwo Howey factors. 10 The primary issue is whether the drilling interests\\nsatisfied the third factor—whether the investors expected to profit “solely from\\nthe efforts of” the Managers.\\n When determining whether investors expect to rely “solely on the efforts\\nof others,” courts construe the term “solely” “in a flexible manner, not in a\\nliteral sense.” Youmans, 791 F.2d at 345. And for good reason. If courts\\ninterpreted “solely” in a literal way, a party could “evade liability” merely by\\nparceling “out [minor] duties to investors.” Id. at 345–46. To prevent this\\npossibility, courts find the third Howey factor met if “the efforts made by those\\nother than the investor are the undeniably significant ones, those essential\\nmanagerial efforts which affect the failure or success of the enterprise.”\\nWilliamson, 645 F.2d at 418. Even though an investor might retain\\n“substantial theoretical control,” courts look beyond formalities and examine\\n\\n\\n\\n\\n 10 Gonzalez states, in one sentence, that none of the Howey factors were satisfied, but\\nhis brief is dedicated solely to the third factor. Because he did not provide any support for\\nhis argument, he waived it. United States v. Upton, 91 F.3d 677, 684 n.10 (5th Cir. 1996)\\n(“[C]laims made without citation to authority or references to the record are considered\\nabandoned on appeal.”).\\n 11\\n\\f Case: 17-10503 Document: 00515013011 Page: 12 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nwhether investors, in fact, can and do utilize their powers. Affco Invs. 2001,\\nLLC v. Proskauer Rose, L.L.P., 625 F.3d 185, 190 (5th Cir. 2010).\\n Here, the court must apply these general principles to a partnership. 11\\nInterests in a partnership can satisfy the third Howey factor and qualify as an\\n“investment contract.” But not all partnerships qualify. For example, partners\\nin a general partnership can guard “their own interests” with their “inherent\\npowers” and do not need protection from securities laws—they can “act on\\nbehalf of the partnership”; “bind their partners by their actions”; “dissolve the\\npartnership”; and “are personally liable for all liabilities of the partnership.”\\nYoumans, 791 F.2d at 346. General partners are, in short, “entrepreneurs, not\\ninvestors.” Id. Accordingly, general partnership interests typically do not\\nqualify as securities. Id. And a litigant trying to prove otherwise must\\novercome the “strong presumption” that “a general partnership . . . is not a\\nsecurity.” Nunez v. Robin, 415 F. App’x 586, 589 (5th Cir. 2011) (per curiam)\\n(unpublished) (quoting Youmans, 791 F.2d at 346); see also Youmans, 791 F.2d\\nat 346 (“A party seeking to prove the contrary must bear a heavy burden of\\nproof.”).\\n Limited partners are different. Unlike general partners, limited\\npartners lack significant powers—their “liability for the partnership is limited\\nto the amount of their investment”; “[t]hey cannot ordinarily dissolve the\\npartnership . . . [or] bind other partners”; and “they have little or no authority\\nto take an active part in the management of the partnership.” Youmans, 791\\nF.2d at 346. Without any significant powers, a limited partner is like “a\\nstockholder in a corporation.” Id. As a result, “limited partnership interests\\n\\n\\n\\n 11 This court applies the same analysis to partnerships and joint ventures. Youmans,\\n791 F.2d at 346 n.2 (“Our discussion of partnerships applies with equal force to joint ventures\\nsince this kind of business investment device is the same for purposes of the federal securities\\nlaws.”).\\n 12\\n\\f Case: 17-10503 Document: 00515013011 Page: 13 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nmay be considered a security.” Id. (citing Sibel v. Scott, 725 F.2d 995, 998 (5th\\nCir.), cert. denied, 467 U.S. 1242 (1984)).\\n While we typically employ a “strong presumption” that “a general\\npartnership . . . is not a security,” Nunez, 415 F. App’x at 589 (quoting\\nYoumans, 791 F.2d at 346), we have noted that even general partners can lack\\nmanagerial powers. Labeling a partnership as general or limited does not\\nalways reflect what really matters: the division of power among the partners.\\nWhile general partners usually have an array of ways to influence the\\npartnership, partnership documents or other barriers sometimes curtail their\\npower. Under these circumstances, even a general partnership interest can\\nqualify as a security.\\n To guide courts in applying the third Howey factor to these in-between\\nsituations, this court set forth the three Williamson factors—the primary\\nsource of contention here. These factors flesh out situations where investors\\ndepend on a third-party manager for their investment’s success, and each\\nfactor is sufficient to satisfy the third Howey factor. Under the Williamson\\nfactors, a partner is dependent solely on the efforts of a third-party manager\\nwhen:\\n (1) an agreement among the parties leaves so little power in the\\n hands of the partner or venturer that the arrangement in fact\\n distributes power as would a limited partnership; or (2) the\\n partner or venturer is so inexperienced and unknowledgeable in\\n business affairs that he is incapable of intelligently exercising his\\n partnership or venture powers; or (3) the partner or venturer is so\\n dependent on some unique entrepreneurial or managerial ability\\n of the promoter or manager that he cannot replace the manager of\\n the enterprise or otherwise exercise meaningful partnership or\\n venture powers.\\n\\n\\n\\n\\n 13\\n\\f Case: 17-10503 Document: 00515013011 Page: 14 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nWilliamson, 645 F.2d at 424. 12 Courts, however, are not limited to these three\\nfactors—other factors could “also give rise to such a dependence on the\\npromoter or manager that the exercise of partnership powers would be\\neffectively precluded.” Id. at 424 n.15. But regardless of which factor is at\\nissue, a party can only prove one of the Williamson factors by looking to the\\nunique facts of the arrangement at issue. Differently put, a party faces a\\n“factual burden” when proving one of the Williamson factors. Id. at 425.\\n A. THE FIRST WILLIAMSON FACTOR\\n The first Williamson factor is whether the drilling projects left the\\ninvestors so little power “that the arrangement in fact distributes power as\\nwould a limited partnership.” Id. at 424. In determining whether an\\narrangement deprives investors of power, courts look to two sources of\\nevidence. First, courts look to the legal documents setting up the arrangement\\nto see if investors were given formal powers. See, e.g., id. (looking to the\\n“partnership agreement” to see if partners were given power). Second, courts\\nexamine how the arrangement functioned in practice, which includes looking\\nfor barriers to investors using their powers. See, e.g., Nunez, 415 F. App’x at\\n590 (looking to the fact that an investor exercised power over the partnership’s\\nfinances); Long v. Shultz Cattle Co., 881 F.2d 129, 134 (5th Cir. 1989) (crediting\\nthe jury’s conclusion that investors, in practice, followed the manager’s\\n\\n\\n\\n\\n 12 A number of other circuits have adopted the Williamson factors as a way to analyze\\nthe third Howey factor. See, e.g., SEC v. Shields, 744 F.3d 633, 644 (10th Cir. 2014) (adopting\\nthe Williamson factors); United States v. Leonard, 529 F.3d 83, 90–91 (2d Cir. 2008) (same);\\nSEC v. Merch. Capital, LLC, 483 F.3d 747, 755–56 (11th Cir. 2007) (same); Stone v. Kirk, 8\\nF.3d 1079, 1086 (6th Cir. 1993) (same); Koch v. Hankins, 928 F.2d 1471, 1477–81 (9th Cir.\\n1991) (same); Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 241\\n(4th Cir. 1988) (same).\\n\\n 14\\n\\f Case: 17-10503 Document: 00515013011 Page: 15 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nrecommendations). How the arrangement functioned is typically the most\\nimportant indication of whether investors had power. 13\\n Here, this factor turns on six critical disputes—(1) the Managers’ formal\\npowers as compared to the investors’ formal powers; (2) whether the investors\\nexercised their formal powers; (3) the voting structure of the drilling projects;\\n(4) information available to the investors; (5) communication among the\\ninvestors; and (6) the number of investors. All these factors go towards\\ndetermining whether the investors had power to control the drilling projects.\\n 1. The Managers’ and Investors’ Formal Powers\\n Arcturus and Aschere did possess a significant amount of power. First,\\nand most significantly, the JVAs make clear that they had the power to control\\n“the day-to-day Operations” of the drilling projects. The JVAs defined\\n“Operations” broadly as any activity related to acquiring, drilling, testing,\\ncompleting, equipping, or otherwise working on the prospect well. The ability\\nto control the daily “Operations” also came with “full and plenary power” to,\\namong other things, (1) retain operators to drill and complete wells, (2) conduct\\n\\n\\n 13 Gonzalez dedicates much of his brief to arguing that the district court erred by\\nlooking to post-investment conduct when it was determining the expectations of the parties\\nat the time they entered the drilling investment contracts. This argument is unpersuasive.\\nFirst, a recent opinion by this court explicitly held that post-investment conduct is relevant\\nto determining the expectations of the parties at the time they entered the contract. See SEC\\nv. Sethi, No. 17-41022, 2018 WL 6322153, at *3 n.3 (5th Cir. Dec. 4, 2018). Second, other\\ncircuits allow courts to look at “post-investment conduct.” Shields, 744 F.3d at 646; see also\\nMerch. Capital, 483 F.3d at 760; Koch, 928 F.2d at 1478 (looking to the “practical possibility\\nof the investors exercising the powers they possessed pursuant to the partnership\\nagreements.”). Third, even before the explicit holding in Sethi, this court, in nearly every\\ncase, did in fact analyze post-investment activity. See, e.g., Nunez, 415 F. App’x at 590\\n(looking to the fact that the investor exercised power over the partnership’s finances); Long,\\n881 F.2d at 134 (crediting the jury’s conclusion that investors followed the manager’s\\nrecommendations); Youmans, 791 F.2d at 347 (directing the trial court on remand to further\\ndevelop the “practical application” of the relevant contract provisions). Fourth, Gonzalez\\ncites no cases in support of his position—all his cited cases either (1) hold exactly the opposite\\nof what he argues, or (2) are distinguishable because they address situations where investors\\ndelegated power to a manager after forming the initial contract. See, e.g., Holden v.\\nHagopian, 978 F.2d 1115, 1119 n.6 (9th Cir. 1992).\\n 15\\n\\f Case: 17-10503 Document: 00515013011 Page: 16 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nsurveys, (3) execute “any and all contracts and agreements,” (4) make “all”\\nelections or decisions and “bind the Joint Venture,” (5) make payments with\\nfunds belonging to the projects, (6) execute operating agreements, and (7)\\nexecute powers of attorney. Second, when dealing with third parties, the\\nManagers had the power to execute contracts that contained “such provisions\\nas the Managing Venturer deems expedient.”\\n Third, the Managers had the power of the purse and could “charge the\\nJoint Venture . . . all reasonable expenses incurred by the Managing Venturer\\nin the operation of the Joint Venture.” Fourth, these powers were exclusive—\\naccording to the JVA, no investor besides the Manager could “act on behalf of,\\nsign or bind the Joint Venture with respect to Operations of the Joint Venture.”\\nFinally, the Managers also had “sole and absolute discretion” to interpret\\nambiguous or unclear provisions.\\n While the Managers had significant power, the investors, at least\\nformally, were not without countervailing powers. Most importantly, the\\ninvestors had the power to remove Arcturus and Aschere as managers with a\\n60% vote—a power this court has called “an essential attribute of a general\\npartner’s . . . authority.” Youmans, 791 F.2d at 347. This court has also held\\nthat similar removal provisions do not divest investors of their power.\\nWilliamson, 645 F.2d at 409, 424 (suggesting that 60% and 70% removal\\nrequirements did not shield the manager from removal); Youmans, 791 F.2d at\\n346-47 (holding that the investors had power over the scheme, in part because\\nof a majority vote removal provision); see also Holden, 978 F.2d at 1120 (finding\\nno investment contract where manager could be removed with simple majority\\nvote). Nor is the 60% requirement as burdensome as removal provisions that\\nother courts have addressed. See, e.g., Merch. Capital, 483 F.3d at 757-58\\n(holding that provisions requiring unanimous, for-cause removal made\\nmanager “effectively unremovable”).\\n 16\\n\\f Case: 17-10503 Document: 00515013011 Page: 17 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n The investors also had authority over almost all of the Managers’ powers.\\nFor example, the JVAs clarify that the “Joint Venture and all of its affairs,\\nproperty, and Operations shall be managed and controlled by a majority of the\\nVenturers.” The JVA also qualifies the Manager’s power by giving the\\ninvestors veto power—the seven “Operations” powers outlined above are all\\nsubject to “the affirmative Vote of the Venturers.” If this provision was\\nfollowed in practice, then the Manager could not bind the drilling project\\nwithout the investors voting to affirm. The investors also had the power to\\ndevelop rules and procedures governing meetings and voting, demand a\\nmeeting, amend the JVA, receive financial information and information about\\nthird-party transactions, and inspect the project’s books. The signing\\ndocuments given to the investors also make clear that the investors will be\\nrequired to take an active role in governing the drilling projects. They also\\nclearly state that the venture is not a security, putting the investors “on notice”\\nthat “federal securities acts” will not protect them. Williamson, 645 F.2d at\\n422. Further, if an investor did not send money for an assessment, it was\\ninterpreted as a “no” vote, so the baseline voting rules did not necessarily favor\\nthe Managers, unlike other cases. See Merch. Capital, 483 F.3d at 760 (“[T]he\\nvoting process was tilted in [the defendant’s] favor from the very start. The\\npartnership agreement provided that unreturned and unvoted ballots were\\nvoted in favor of management.”).\\n Added together, these provisions, at least formally, give the investors\\nsignificant control over the drilling projects. Indeed, nearly all of the\\nManagers’ powers are subject to an affirmative vote by the investors. Other\\ncases have held that investors with similar powers possessed control over the\\npartnership. See, e.g., Koch, 928 F.2d at 1478–79 (holding that partners had\\nat least formal power where “[a]dditional assessments of capital must be\\napproved by 75 percent of the partnership units; a majority of the partnership\\n 17\\n\\f Case: 17-10503 Document: 00515013011 Page: 18 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nunits can remove any person from a management position; decisions regarding\\nthe management and control of the business must be made by a majority vote”).\\n 2. The Investors’ Powers in Practice\\n But, as the case law makes clear, formal powers are not dispositive—\\ncourts must determine whether investors can and do exercise those powers.\\nSee, e.g., Youmans, 791 F.2d at 347 (directing the trial court on remand to\\nfurther develop the “practical application” of the relevant contract provisions).\\nHere, the record suggests that the investors utilized their powers. The record\\nshows votes taken on a variety of actions, such as increasing production units;\\ncompletion; workover and recompletion; new projects; and dissolution. The\\nrecord also contains communications from the Managers requesting a vote on\\na subsequent cleanout proposal. Fifteen investors also submitted affidavits\\ndeclaring that they had the power to, and did in fact, vote on a variety of\\ndecisions. And the record does not show that Arcturus or Aschere took any\\nsignificant actions without the investors’ prior approval. The fact that the\\ninvestors voted and took actions to manage the drilling projects makes this\\ncase different than others where the district court appropriately granted\\nsummary judgment. See Sethi, 2018 WL 6322153, at *4 (affirming the district\\ncourt’s grant of summary judgment where “[t]he investors never held a\\nmeeting and did not vote on any matter.”).\\n 3. The Projects’ Voting Structure\\n The SEC and the district court placed great weight on the contract\\nprovisions covering completion assessments and additional assessments.\\nWhen faced with the Managers’ recommendation to complete a well and enter\\na turnkey completion contract, the investors can vote for or against completion.\\nIf the investors vote to complete the well, then the project charges them a\\ncompletion assessment of up to $100,000. If an investor fails to pay the\\nassessment, then he is considered to have abandoned his interest. For\\n 18\\n\\f Case: 17-10503 Document: 00515013011 Page: 19 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nadditional assessments, if the investors vote to approve additional work, each\\ninvestor has one of three choices. Investors must either pay the assessment,\\nabandon their interest, or pay a penalty if they pay the assessment late. An\\ninvestor who pays late becomes a non-participating investor and can be\\nreinstated only by paying the penalty. This arrangement, according to the\\nSEC, presents investors with a Hobson’s choice—follow the manager’s\\nrecommendation or you are out. 14\\n These provisions, however, do not operate like the SEC suggests. To help\\nclarify, these provisions must be placed in the context of an inherently\\nspeculative investment like drilling. One law review article describes the\\ninitial payment in these contracts as the cost of “being allowed to participate”\\nuntil the point when the investors choose whether to complete the well. R.K.\\nPezold & Danny Richey, The “Industry Deal” Among Oil and Gas Companies\\nand the Federal Securities Acts, 16 Tex. Tech L. Rev. 827, 833 (1985)\\n[hereinafter, Industry Deal]. Splitting the process into drilling and completion\\nmakes sense because it allows investors to get a glimpse inside the well without\\npaying for completion upfront. Only later, after gathering more information\\nfrom the drilling process, do investors choose if they want to complete the well.\\nThis split between the initial drilling and completion effectively gives investors\\nan additional chance to cut their losses. The signing papers follow this general\\nsplit and make clear that investors are only entering a turnkey drilling\\ncontract—completion, which is not mandatory, requires additional investment.\\n\\n\\n\\n\\n 14 The SEC argues that investors who oppose the Manager’s recommendation are\\neither charged a penalty or kicked out of the project. But that assertion is not true. We\\ncannot find anywhere in the offering documents where an investor is kicked out for voting\\nagainst the Manager’s recommendation. The only reason an investor is kicked out is for\\nfailing to pay his proportionate share of completion costs after an affirmative vote has been\\ntaken.\\n 19\\n\\f Case: 17-10503 Document: 00515013011 Page: 20 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Returning to the investors’ choices with this basic background, the\\narrangement does not strip the investors of power. If an investor votes for\\ncompletion, he does not lose power because he must pay for completion costs.\\nIf the investor thinks the well is a lost cause, then allowing him to abandon his\\ninterest also does not strip him of power. The entire project is presumptively\\norganized around one well—if the investor thinks it is not going to be profitable\\nafter drilling, then he likely would want out of the project without wasting\\nadditional money. 15 These investors are free to “stand aside, incur no further\\ncosts, and allow the ‘consenting owners’ to proceed with any completion\\nactivities desired.” Industry Deal, at 833 n.27.\\n When it comes to subsequent operations, if an investor is unclear what\\nto do, he can avoid paying. The investor then becomes a non-participating\\ninvestor. But the investor’s initial silence is not permanent—the investor can\\npay a “pre-agreed and substantial economic penalty” and become a\\nparticipating investor again. Industry Deal, at 834 n.27. This penalty also\\nmakes sense. When an investor fails to pay operation costs, other participating\\ninvestors are forced to take up the financial slack, increasing their risk. The\\npenalty serves to compensate the “risk-taking” investors who bore the added\\nrisk. Industry Deal, at 834 n.27. While the SEC argues that these\\nconsequences eliminate any voting power, they can be seen in a more positive\\nlight as preventing free-riding.\\n The case law, while not oil-and-gas specific, further supports this\\nintuition. In Williamson, this court did not attach any significance to a similar\\nvoting plan. 645 F.2d at 409. The voting plan there required the manager to\\npresent the investors with “any proposal for development.” Id. at 409. The\\n\\n\\n 15An email from at least one investor confirms this intuition. In the email, the\\ninvestor, angry at the project’s failure, says that he is “far more comfortable not losing more\\nmoney than . . . putting more into this losing project.”\\n 20\\n\\f Case: 17-10503 Document: 00515013011 Page: 21 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\ninvestors could approve the proposal by a “vote of the holders of 60% or 70% in\\njoint venture interests.” Id. Importantly, if the investors accepted the\\nproposal, the investors who approved it were “obligated to purchase the\\ninterests of those who [did] not.” Id. Structurally, the consequences were like\\nthose here—vote yes, pay more money; vote no, you are out. 16 If such a\\nstructure was not a Hobson’s choice there, it is unclear why it would be here.\\n 4. The Source of Investors’ Information\\n The SEC argues, and the district court held, that the investors’ powers\\nwere weak because they relied on the Managers for information about the\\ndrilling projects. 17 Some case law does suggest that investors are powerless\\nwhen all of their pertinent information comes from the managers. 18 But mere\\ncontrol over information does not, on its own, strip investors of their power to\\nvote. The source of information only matters when the investors do not receive\\nenough information to make an educated decision. See Sethi, 2018 WL\\n6322153, at *4 (affirming the district court’s grant of summary judgment\\nbecause the defendant “gave the investors little to no information”); Merch.\\nCapital, 483 F.3d at 759 (“[The defendant] controlled how much information\\n\\n\\n 16The main difference was that dissenters in Williamson got their investments back,\\nbut that has more to do with riskiness than control of the venture.\\n\\n 17 Control of information can go to the first or second Williamson factors. See Long,\\n881 F.2d at 137. It goes to the first factor when the party in control of information prevents\\notherwise competent investors from exercising control over the partnership or venture. For\\nexample, the controlling party can provide only a small amount of information that supports\\nits position. See Merch. Capital, 483 F.3d at 759. Control of information goes to the second\\nfactor when the investors are not sophisticated enough to understand the information they\\nare given. See Long, 881 F.2d at 135–36.\\n\\n 18 The SEC relies on Long for this point, but this reliance is misplaced. Long was\\nprimarily about whether investors can acquire experience and knowledge from the\\ndefendant—the second Williamson factor—not the source of the information. When it came\\nto the first Williamson factor, the court in Long relied on the jury’s conclusion that the\\ninvestors relied exclusively on the defendant’s recommendations, as established by a\\ndocumented pattern of voting. See Long, 881 F.3d at 134.\\n 21\\n\\f Case: 17-10503 Document: 00515013011 Page: 22 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nappeared in the ballots, and did not submit sufficient information for the\\npartners to be able to make meaningful decisions to approve or disapprove debt\\npurchases.”). In Merchant Capital, for example, the Eleventh Circuit held that\\ninvestors could not effectively exercise their voting rights because the manager\\nonly gave investors three pieces of information, which was not “sufficient\\ninformation for the partners to be able to make meaningful decisions.” Id. at\\n759. This conclusion was established at trial by expert testimony. Id.\\n This case is not like Merchant Capital. The record suggests that\\ninvestors had numerous sources of information. The Managers sent email\\nupdates to the investors on numerous occasions. Some emails contained day-\\nby-day updates. Other emails in the record had attachments of\\n“comprehensive digital daily drilling reports.” Another email references a 24-\\nhour “video surveillance” system being installed for remote access of visual\\nmanagement of drilling operations.” Some emails in the record welcomed\\ninvestors to come visit the drilling site. And fifteen different investors\\ncorroborated this record evidence with affidavits, declaring that they stayed\\nwell-informed through “persistent status updates” in the form of “geologic data,\\nwell data, proposed oil and gas contracts, . . . video surveillance and other forms\\nof live monitoring.” All this information goes far beyond the three pieces of\\ninformation provided to investors in Merchant Capital. More importantly, this\\ncourt does not have the “trial testimony” of numerous witnesses and experts to\\ndetermine, as a matter of law, that the investors had enough information to\\n“make an informed decision.” Merch. Capital, 483 F.3d at 758.\\n The SEC also seems to suggest that the investors lacked control because\\nthe Managers picked the experts who were providing much of the technical\\ndata. But it is unclear whether this choice mattered. It is possible, for\\nexample, that the Managers were simply conduits for information—the\\nconsultants sent the Managers information about the well, which the\\n 22\\n\\f Case: 17-10503 Document: 00515013011 Page: 23 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nManagers then passed to the investors. As noted above, the Managers\\nsometimes passed along the raw data they received from the operators. If the\\ninvestors and Managers had access to the exact same data, the investors could\\ndraw their own conclusions about the prospect wells. And the SEC does not\\npoint to any facts showing that the consultants presented biased information.\\nNor does the SEC point to any facts showing that the Managers misled the\\ninvestors with false or altered information.\\n 5. Investor Communications\\n The SEC argues that the investors’ powers were useless because they\\ncould not contact each other and coordinate their votes. The SEC also argues\\nthat the Defendants would not release investor contact information. The\\nrecord lends some support to these contentions. 19 According to one investor,\\nDouglas Traver, Parvizian withheld investor information at least once. Four\\nof the six JVAs also protected investor contact information as “confidential and\\na trade secret of the Managing Venturer.” For these four projects, no investor\\nwas entitled to learn the identity of other investors. And when the Managers\\nsent emails to all of the investors on a given project, they generally blind-copied\\nthe recipients, preventing them from easily contacting other investors. Most\\ntroublingly, one investor, Richard Ullrey, declared that Parvizian threatened\\nlegal action against him for contacting other investors.\\n The case law adds force to these arguments. Courts have previously held\\nthat investors might lack real power if they are unacquainted and unable to\\n\\n\\n\\n\\n 19 The district court placed weight on the fact that the investors were “located across\\nthe United States.” But this factor originated with a Supreme Court opinion from 1946, and\\nit is antiquated today. Howey, 328 U.S. at 299. The investors, if they had contact information\\nfor each other, could communicate using telephone, email, text messages, or video calls.\\nWhile physical proximity still deserves some weight—it might, for example, play some role\\nin facilitating introductions—it is not necessarily a critical factor with the many forms of\\ncommunication available today.\\n 23\\n\\f Case: 17-10503 Document: 00515013011 Page: 24 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\ncommunicate. Merch. Capital, 483 F.3d at 758 n.8 (holding that partners did\\nnot have meaningful voting power, in part, because “[s]uch a move would have\\nrequired a two-thirds vote of geographically distant, unacquainted partners”);\\ncf. Howey, 328 U.S. at 299.\\n But the record is not as clear as the SEC suggests. The record shows\\nthat the investors did in fact communicate with each other. They\\ncommunicated on phone calls. The record also contains emails between a\\nmultitude of investors communicating about a vote to complete a drilling\\nproject. Several investors also declared that they communicated with each\\nother at venture meetings. Another investor declared that he received investor\\ncontact information. The record also shows documents in which the Managers\\nidentified the other investors. And even though Ullrey declared that he feared\\ncontacting other investors after Parvizian allegedly threatened him, he\\nnevertheless sent emails to other investors two years later.\\n The district court did not analyze these documents. With so many\\ninvestors declaring that they could communicate with each other, and evidence\\nof actual communications, the Defendants raised a genuine issue about\\nwhether the investors could communicate with each other and organize.\\nUllrey’s potentially conflicting statements are a case in point on why a full\\nfactual hearing with cross-examination is needed.\\n 6. The Number of Investors\\n Each drilling project had anywhere from 35 to 108 investors. These\\nnumbers run on the high end of the case law. And they seem to be on the high\\nend of industry norms. 20 But at least one case held that 160 investors in a\\npartnership was not a number so large that each partner’s role was “diluted to\\n\\n\\n 20In Industry Deal, the authors explain that these contracts are normally structured\\nwith three investors and an operator on a “third-for-a-quarter” basis. Industry Deal, at 833.\\nInvestors pay one-third of the drilling costs and receive one-quarter of the revenue.\\n 24\\n\\f Case: 17-10503 Document: 00515013011 Page: 25 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nthe level of a single shareholder.” Koch, 928 F.2d at 1479 & n.12; see also\\nRivanna, 840 F.2d at 242 n.10 (4th Cir. 1988) (Powell, J., sitting by\\ndesignation) (finding that a partnership with 23 members was not a security).\\nFurther factual development is needed to determine whether the size of each\\ndrilling project stripped the investors of their power.\\n 7. Conclusion of the First Williamson Factor\\n In sum, there is evidence in the record that (1) the investors had formal\\npowers, (2) they used these powers, (3) the voting structure was not necessarily\\ncoercive, (4) the investors received information, (5) they communicated with\\neach other, and (6) the number of investors was not so high that it eliminated\\nall of their power. We reverse the district court’s ruling on the first Williamson\\nfactor.\\n B. THE SECOND WILLIAMSON FACTOR\\n The second Williamson factor is whether the drilling project investors\\nwere “so inexperienced and unknowledgeable in business affairs” that they\\nwere “incapable of intelligently exercising” their powers. Williamson, 645 F.2d\\nat 424. The second Williamson factor applies to both investors and offerees.\\nGenerally, an interest in a partnership is more likely to be a security if it is\\nsold to “inexperienced and unknowledgeable members of the general public.”\\nId. at 423. But proving that investors are inexperienced requires evidence\\nabout the investors themselves. See Merch. Capital, 483 F.3d at 762 (“[T]he\\nSEC presented uncontradicted evidence that the individual partners had no\\nexperience in the debt purchasing business.”); Nunez, 415 F. App’x at 589\\n(examining the experience of the individual plaintiff); Williamson, 645 F.2d at\\n424–25 (examining the experience of each investor). And investor expertise\\n“must be considered in relation to the nature of the underlying venture.” Long,\\n881 F.2d at 135. This requirement, however, should not be read to suggest\\nthat investors necessarily need a specialized background. If evidence shows\\n 25\\n\\f Case: 17-10503 Document: 00515013011 Page: 26 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nthat an investor can intelligently control his investment, then courts do not\\nrequire specialized experience. See, e.g., Robinson v. Glynn, 349 F.3d 166, 171\\n(4th Cir. 2003) (holding that specialized experience was not required because\\nthe investor showed he was capable of managing his investment); Youmans,\\n791 F.2d at 343, 347 (finding the plaintiff, a physician, sufficiently experienced\\nbecause he “also engaged in a number of business transactions not connected\\nwith [the defendants]”).\\n For example, in Long the investors purchased interests in a cattle farm,\\nwith each investor buying individual cows that were jointly managed by the\\ndefendants. 881 F.2d at 134–136. One important question was whether the\\ninvestors had enough knowledge to manage their own herd of cattle. And when\\nanswering this question, the court did not look only to investors’ experience in\\ncattle raising—it looked to the investors’ attempts to manage the cattle they\\npurchased from the defendants.\\n Looking at those actions, the court easily concluded that the investors\\n“lacked the experience necessary to care for, feed, and market their cattle.” Id.\\nat 135. Some investors “visited the feedyard on one occasion,” but “there was\\nno evidence that [they] sought to give any individual instruction regarding the\\ncare and feeding of their cattle.” Id. One of the investors even “expressed the\\nmistaken impression that a heifer was a breed of cattle.” Id. The investors’\\nactions, established at trial, showed that they could not manage their\\ninvestments, and their lack of specialized experience was the reason why.\\n Similarly, in Nunez an investor-plaintiff argued that he was forced to\\nrely on the manager because he lacked experience in “sand and gravel mining.”\\n415 F. App’x at 589. The investor, however, had taken a variety of actions to\\nmanage his investment. Id. at 590 (“The record establishes that [the investor]\\nparticipated in other managerial decisions in his role as managing partner.”).\\nEven if the investor lacked specialized experience, he failed to prove that this\\n 26\\n\\f Case: 17-10503 Document: 00515013011 Page: 27 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nlack of experience prevented him from “meaningfully exercis[ing] his\\nmanagerial powers.” Id. at 591.\\n 1. The Investors\\n Here, the SEC argues that the investors were inexperienced for two\\nreasons. First, the Defendants engaged in an indiscriminate cold-calling\\ncampaign that did not seek out experienced investors. Second, the SEC points\\nto statements from four investors that they were inexperienced in drilling\\ninvestments. These arguments are not dispositive—at summary judgment, we\\ncannot make an inference about a group of over 340 investors based on this\\nlimited evidence.\\n The cold-calling campaign is probative of the investors’ experience. In\\nassessing the second Williamson factor, courts rightly examine how a\\npartnership acquired its members. See, e.g., Long, 881 F.2d at 135 (holding\\nthat investors in a cattle farm were not experienced, in part, because the\\nscheme “advertised its feeding program in financial publications . . . and in\\nlarge-city newspapers . . . and did not advertise in agricultural periodicals or\\nin other publications likely to have a readership acquainted with cattle-\\nfeeding”). A court can glean information about investors by examining how\\nand from where the partnership attracted them. But when determining\\nwhether investors are experienced, looking at marketing methods is, at best,\\ncircumstantial evidence about the investors. 21 A better place to look is directly\\n\\n\\n 21 The SEC stressed the nationwide cold-calling campaign in their briefs and oral\\nargument. By emphasizing that the Defendants called investors across the country from a\\npurchased lead list, the SEC likened the Defendants’ marketing strategy to that of an\\nindiscriminate telemarketer. If the SEC had presented undisputed evidence that the\\nDefendants used indiscriminate marketing methods, then we agree that this case would fall\\ninto the purview of Long. But this case differs from Long and other similar cases.\\n\\n In Long, the court confronted undisputed evidence that the defendants sought\\ninexperienced investors—the defendants conceded so at trial. Id. at 135. Here, by contrast,\\nthe Defendants maintain that they did not seek out inexperienced investors. And they\\n 27\\n\\f Case: 17-10503 Document: 00515013011 Page: 28 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nat the investors’ actual qualifications. The case law follows this analysis,\\nlooking to investor qualifications and using advertisement methods, if at all,\\nmerely to bolster a conclusion—it is rarely the only piece of evidence. See, e.g.,\\nLong, 881 F.2d at 134–36 (looking to actual evidence of investor experience and\\nthen looking to advertising method); Aqua-Sonic, 687 F.2d 577, 583 (2d Cir.\\n1982) (same); see also Williamson, 645 F.2d at 425 (looking to each investor’s\\nbusiness experience alone). And when it comes to the investors’ actual\\nexperience, the record does not clearly entitle the SEC to summary judgment.\\n As the Defendants point out, the record shows that many investors did,\\nin fact, have experience in oil and gas drilling. For example, one investor\\ndeclared that he had “an engineering background” and “participated in other\\nenergy ventures with Escondido and Patriot Energy.” In an email, another\\ninvestor disclosed that he had “done 83 of these projects over the last ten\\nyears.” Another investor declared that he has “extensive experience in\\ninvesting in domestic energy and often defer[s] to the advice of [his] energy\\nadvisors and petroleum engineers.” Still others had general business\\nexperience.\\n The record also shows that various investors had advisors helping them\\nmake decisions—an important factor in the caselaw. See, e.g., Robinson, 349\\nF.3d at 171; Banghart v. Hollywood Gen. P’ship 902 F.2d 805, 808 n.5 (10th\\nCir. 1990); Rivanna, 840 F.2d at 242 n.10. Balunas stated that many investors\\n\\n\\n\\n\\nsupport this argument with competent summary judgment evidence, which, if believed by a\\nfactfinder, would show that they sought experienced investors. The record suggests that the\\npotential investors on the lead list were vetted for investing experience before being added to\\nthe list. The record also suggests that many investors had prior experience with the\\nDefendants. At summary judgment, viewing the evidence in the light most favorable to the\\nDefendants, we cannot conclude that the Defendants sought out inexperienced investors.\\nThe SEC failed to eliminate genuine issues of material fact about the scope of the Defendants’\\nmarketing and the types of investors they targeted. These questions are better resolved by\\na factfinder.\\n 28\\n\\f Case: 17-10503 Document: 00515013011 Page: 29 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n“had their CPAs or attorneys call” the Defendants before investing. Others\\npersonally visited the well or spoke with the drilling operator or onsite drilling\\nengineers. Another stated that he has “extensive experience in investing in\\ndomestic energy and often defer[s] to the advice of [his] energy advisors and\\npetroleum engineers.”\\n The Defendants also required the investors to represent that they had\\nbusiness experience and were capable of intelligently exercising their\\nmanagement powers. 22 The CIM made clear that only qualified investors were\\neligible. The investors were also required to represent that they were\\naccredited investors. 23 And several of the investors invested in prior Parvizian\\nventures, a factor that this court previously relied upon when holding that\\ninvestors were experienced. See Williamson, 645 F.2d at 425 (“The defendants’\\nexhibits contain documents from previous ventures which indicate that [two\\ninvestors] had already been members of other joint ventures organized by [the\\nmanagers].”).\\n\\n\\n 22 The Defendants belatedly argue that they might qualify for an exemption from the\\nSecurities Act. In 2012, the SEC amended Rule 506 to permit “an issuer to engage in general\\nsolicitation or general advertising in offering and selling securities pursuant to Rule 506”\\nwithout registering the securities, so long as the issuer meets two requirements: (1) “all\\npurchasers of the securities are accredited investors” and (2) “the issuer takes reasonable\\nsteps to verify that such purchasers are accredited investors.” SEC, Eliminating the\\nProhibition Against Gen. Solicitation & Gen. Advert. in Rule 506 & Rule 144a Offerings,\\nRelease No. 3624 (July 10, 2013). Because the Defendants required all investors to represent\\nthat they were accredited investors, Parvizian argues that this exception applies.\\n\\n Parvizian waived this argument by not raising it earlier. Hightower v. Tex. Hosp.\\nAss’n, 73 F.3d 43, 44 (5th Cir. 1996) (holding that arguments raised for the first time in a\\npetition for rehearing were “raised too late in the appellate process to be useful to this court,\\nand they are deemed waived and have played no role in our decision”). But even if he had\\nraised it, the transactions at issue occurred before these amendments, and he cites no\\nlegislative or judicial authority that they should apply retroactively.\\n\\n An “accredited” investor is a person with a net worth over $1,000,000 independently\\n 23\\n\\nor combined with a spouse or with individual income over $200,000 or joint income over\\n$300,000.\\n\\n 29\\n\\f Case: 17-10503 Document: 00515013011 Page: 30 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n The SEC specifically points to statements by Ullrey that he “relied on\\n[Parvizian’s] determination [that completion of a well was appropriate] with\\nno means to verify that this determination was correct” when he voted to\\ncomplete a well. But many other courts have refused to transform an\\ninvestment into a security based on similar statements without further\\ncorroborating proof. See, e.g., Nunez, 415 F. App’x at 589; Robinson, 349 F.3d\\nat 172; Banghart, 902 F.2d at 808 n.5. At summary judgment, this evidence is\\ninsufficient to eliminate all questions of material fact.\\n While Ullrey implies that he was an unsophisticated oil and gas investor,\\nhis email to Parvizian—one of the few emails we have from him—paints a\\ndifferent picture. That email states that (1) he understood a fair amount of the\\nunderlying “geology” of different wells and felt capable of “comparing” reports\\nfrom “each geologist”; (2) he was comfortable analyzing the “engineering”\\nacross wells; (3) he knew many drilling acronyms and terms; and (4) he knew\\nhow to analyze production zones and past production history. As one example\\nthat he might not be as unsophisticated as the SEC argues, he specifically\\nasked why fracking technology had not been used even though “the gas\\nproduction has been 140 MCF monthly for 2008 and 2009” and “the fractional\\ntechnology has been available for at least as long as this well has been in\\nexistence.”\\n Outside of questions about his technological knowledge, the summary\\njudgment record does not show conclusively that Ullrey was unsophisticated.\\nHe had an investment advisor he consulted. And, as noted above, courts have\\nheld that an advisor is a critical fact showing that an investor does not lack\\nsophistication. See, e.g., Robinson, 349 F.3d at 171; Banghart, 902 F.2d at 808\\nn.5; Rivanna, 840 F.2d at 242 n.10. He was a CPA and stated that he would\\nfeel comfortable analyzing the finances of the joint venture. He also organized\\na lot of investors into an email thread.\\n 30\\n\\f Case: 17-10503 Document: 00515013011 Page: 31 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n This mixed record about Ullrey is a case in point. The summary\\njudgment evidence about Ullrey is mixed, he has not been subjected to cross-\\nexamination, and his statements present quintessential credibility\\ndeterminations. On summary judgment with the current record, we cannot\\nconclude, as a matter of law, that Ullrey was inexperienced, as inexperienced\\nis defined by Williamson and its progeny. A jury is better suited to determining\\nwhether Ullrey was capable of intelligently controlling his investments.\\n Nor can the court determine whether any of the unidentified investors\\nwere inexperienced. Through competing summary judgment motions, both\\nparties asked the court to determine that the pool of over 340 investors had or\\nlacked experience based on limited evidence about roughly 25. At summary\\njudgment, the court cannot make factual inferences about roughly 340\\ninvestors based on such limited evidence, especially when that evidence is\\nmixed.\\n 2. The Offerees\\n The SEC also argues that the Defendants targeted inexperienced\\nofferees. But the record with respect to offerees is limited. And the limited\\nsummary judgment record does not allow us to conclude, as a matter of law,\\nthat the offerees were necessarily inexperienced.\\n First, the tenor of the evidence is that the cold-call list was not meant to\\ninclude inexperienced offerees. Cooper stated that the list might have included\\nonly accredited investors. He also suggested that salespeople did not target\\nonly new, accredited clients—they also called current clients, who would have\\nprior knowledge of the Defendants. This prior relationship, as noted above, is\\nan important factor in the caselaw. See Williamson, 645 F.2d at 425. Balunas\\nalso indicated that he only made offers to accredited investors. Meanwhile, the\\nSEC presented no evidence to challenge these facts, which we must consider in\\nthe light most favorable to the Defendants.\\n 31\\n\\f Case: 17-10503 Document: 00515013011 Page: 32 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Second, the evidence about investors—a sample that sheds light on the\\nofferees—indicates that many were experienced in oil and gas investment.\\nOther courts have used similar reasoning, inferring the offerees’ qualifications\\nfrom the group of eventual investors. For example, in Aqua-Sonic, the Second\\nCircuit used investor qualifications to shed light on the type of investor that\\nthe defendant was targeting (i.e., to determine the offerees’ qualifications). 687\\nF.2d at 583–84 (“However, none of the 50 licensees had any such [specialized]\\nexperience. This was not mere coincidence. The record does not indicate that\\nany attempts were made to locate such purchasers.”). Taking the eventual\\ninvestors as a sample of the offerees, we cannot conclude that the offerees\\nlacked experience. But we are equally incapable of making the opposite\\ninference. Both parties seek to use a small subset of investors to establish the\\nexperience level of the entire group of offerees. And they both seek to do so\\nwithout any direct evidence about the offerees’ qualifications. Given the\\nlimited record and the procedural posture—summary judgment—we cannot\\ndetermine whether the offerees were experienced or not. This factual\\ndetermination is better left to a finder of fact.\\n 3. Conclusion of the Second Williamson Factor\\n These facts taken together raise a genuine issue about the offerees’ and\\ninvestors’ knowledge and experience. 24 The SEC’s evidence does show that at\\n\\n\\n\\n\\n 24 The SEC argues that all investors and offerees need specialized experience. But no\\ncourt has ever explicitly held that every investor needs specialized experience. Courts,\\ninstead, have taken a holistic view of the investors, the type of business at issue, and the deal\\nstruck by the parties. See, e.g., Long, 881 F.2d at 134–136; Howey, 328 U.S. at 296. These\\nfacts, along with others, help the court determine whether the investors had enough\\nexperience to intelligently exercise their partnership powers. We note, however, that in at\\nleast one other case, we did not require all investors in a partnership to have specialized\\nexperience where other evidence showed they could control their investments. See\\nWilliamson, 645 F.2d at 424–25.\\n\\n 32\\n\\f Case: 17-10503 Document: 00515013011 Page: 33 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nleast some investors were not experienced, 25 but not enough to grant summary\\njudgment in the face of the Defendants’ competing evidence, especially on “a\\nquestion of fact which should be resolved in the first instance by the trial\\ncourt.” Koch, 928 F.2d at 1479. We, therefore, reverse the district court’s\\ndecision to grant summary judgment on the second Williamson factor.\\n C. THE THIRD WILLIAMSON FACTOR\\n The third Williamson factor is whether the investors are so “dependent\\non some unique entrepreneurial or managerial ability of [the Managers] that\\n[they] cannot replace the manager of the enterprise or otherwise exercise\\nmeaningful partnership or venture powers.” Williamson, 645 F.2d at 424. As\\nexplained in Williamson, this factor looks to the unique capabilities of the\\nmanager. If the manager has a “non-replaceable expertise” that drew the\\ninvestors to the venture, then they might “be left with no meaningful option”\\nother than the manager. Id. at 423. For example, investors may be induced to\\nenter a “real estate partnership on the promise that the partnership’s manager\\nhas some unique understanding of the real estate market in the area in which\\nthe partnership is to invest.” Id. Any right to “replace the manager” would\\nonly come at the expense of “forfeiting the management ability on which the\\nsuccess of the venture is dependent.” Id. Dependence, however, does not\\nextend to the delegation of management duties—“[t]he delegation of rights and\\nduties—standing alone—does not give rise to the sort of dependence on others\\nwhich underlies the third prong of the Howey test.” Id.\\n\\n\\n\\n\\n 25 This evidence consists mainly of brief statements by investors. One investor said\\nthat he did not “understand everything,” but the record contains no other information about\\nhim. Another investor claimed that she was a “novice investor.” Again, the record has no\\nfurther information about her. Another claimed that he was “new to the oil industry.” The\\nrecord contains no further evidence about him either. Finally, one “inexperienced” investor\\nhad over $2,000,000 in assets, was an engineering director, and had an investment advisor.\\nA fact-finder is better suited to weigh the probative value of this evidence.\\n 33\\n\\f Case: 17-10503 Document: 00515013011 Page: 34 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Here, the SEC argues that the Managers were effectively irreplaceable\\nnot because of some special skill, but because they had the sole ability to\\nenforce drilling contracts with the subcontractors and unfettered control over\\nthe drilling projects’ assets. According to the CIMs and JVAs, all investor\\nfunds would be transferred to one of the Managers, who would then\\nsubcontract with other companies, which were identified in the CIMs, to\\ncomplete the drilling. According to the SEC, this created two problems. First,\\neven if the investors removed the Managers, they would still be party to the\\ncontracts with the subcontractors, making the investors reliant on them—even\\nif removed, the Managers still had the power to enforce, or not enforce, the\\ndrilling contracts. Second, the Managers controlled all of the investors’ funds.\\nFunds were transferred from the drilling projects into an operating account at\\nAschere or Arcturus, and investors had no right to the funds. At least one case\\nheld that a manager is effectively irremovable where it controls investors’\\nfunds and has the sole ability to recoup them. Merch. Capital, 483 F.3d at 764.\\n Neither of the SEC’s arguments is convincing. The first argument is\\nunconvincing because the record is not clear enough to say, as a matter of law,\\nthat the web of contracts between the projects, Managers, and subcontractors\\nmade the Managers irremovable. Nothing in the record demonstrates that, if\\nArcturus or Aschere were removed, the drilling projects would be unable to\\nenforce their contracts. On the contrary, the record suggests that the drilling\\nprojects would still have contracts with Aschere and Arcturus, who, in turn,\\nwould have enforceable contractual relationships with the subcontractors.\\nNothing in the record suggests that a new manager could not enforce the\\ncontract with Aschere or Arcturus through this relationship. And if Aschere\\nor Arcturus failed to perform after being paid, the drilling projects would be in\\nthe same position as if some other contracting company failed to perform.\\n\\n\\n 34\\n\\f Case: 17-10503 Document: 00515013011 Page: 35 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n The state of the record in this case contrasts markedly with Merchant\\nCapital—the primary case that the SEC cites for their argument. In Merchant\\nCapital, the structure of the contractual relationships was like the structure\\nhere. The defendant managers there took funds from multiple investors,\\npooled them, and then pooled them again. The defendants, on behalf of the\\npartnership, entered into a contract with a service-providing company, New\\nVision, who then entered into a contract with another company, EAM. Investor\\nfunds were pooled by New Vision, and then repooled with other funds by EAM.\\nThe ultimate question was whether (1) individual investors could get their\\nfunds back from the defendant, or (2) they depended on the defendant to get\\ntheir funds back.\\n The court held that the investors depended on the defendant for two\\nreasons. First, the defendant did not have effective contractual rights against\\nthe service companies. The defendant had pooled the partnership’s funds in\\naccounts “owned by New Vision.” Id. at 764. And the defendant could not get\\nthose funds back except “in limited circumstances, or upon termination of the\\nentire contract.” Id. Second, even if the investors replaced the defendant with\\na new manager, the right to demand return of investor funds belonged solely\\nto the defendant, not to the partnership. Id. Notably, all of these practical\\ndifficulties with removing the defendant were established at trial. Here,\\nthough, the SEC merely assumes that the right to enforce the contracts with\\ndrilling subcontractors sits solely with the Managers, like in Merchant Capital.\\nBut no evidence shows that the investors would be unable to enforce a drilling\\ncontract if Arcturus or Aschere were removed as the Manager.\\n While it is true that the Managers made contractual promises to find\\nsubcontractors to do the drilling, a mere contractual promise is not enough to\\nfind the Managers irreplaceable. In Williamson, like here, the manager,\\nGodwin Investments, drafted the relevant venture agreements and promised\\n 35\\n\\f Case: 17-10503 Document: 00515013011 Page: 36 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nto perform most of the significant tasks in a real estate venture, like developing\\nthe land and rezoning it. But the court held that these contractual provisions\\nwere not enough to satisfy the third Williamson factor—more is required to\\nestablish irremovability than mere contractual relationships.\\n It is true that the Property would ultimately have to be developed\\n or sold, and in the interim managed, before a profit could be\\n returned on it; and it is true that Godwin Investments promised to\\n perform these tasks. But this alone does not establish a\\n dependence on Godwin Investments so great as to deprive the\\n plaintiffs of their partnership powers. The plaintiffs must allege\\n that Godwin Investments was uniquely capable of such tasks or\\n that the partners were incapable, within reasonable limits, of\\n finding a replacement manager. Godwin Investment’s promise\\n must be more than a binding contract enforceable under state law;\\n it must create the sort of dependence implicit in an investment\\n contract.\\nWilliamson, 645 F.2d at 425 (emphasis added). In short, Aschere and Arcturus\\nare not irreplaceable simply because they made contractual promises to the\\ndrilling projects.\\n The SEC’s second argument—the Managers were irremovable because\\nthey controlled all of the investors’ funds—is unconvincing for two reasons.\\nFirst, the investors never expected to recover their funds unless the oil and gas\\nwells became productive. The investors did not invest in a pool of debt\\ninstruments from which they could withdraw their funds, like in Merchant\\nCapital. The investors sunk their capital into an exploratory drilling project\\nknowing that they would not get it back unless the well became productive.\\nAnd making the well productive would require further investment. They\\nessentially bought the right to see if the well might be productive, and, if so, to\\ninvest in completing the well. The investors could not get back their funds\\nbecause they spent them on an exploratory drilling contract—one phase of the\\ntotal operation—not because the Managers controlled them.\\n\\n\\n 36\\n\\f Case: 17-10503 Document: 00515013011 Page: 37 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Second, the investment here was segmented, as noted above. This case\\nwould present a different question if the investors, from the outset, gave all of\\ntheir funds to the Managers for every phase of the contract—drilling,\\ncompletion, and subsequent operations—and then the Managers transferred\\nthose funds to themselves. In that situation, the Managers might be\\nirreplaceable.\\n At least one case suggests that locking investors from the outset into\\nturnkey contracts with the manager for each stage of the process might make\\na manager irreplaceable. SEC v. Shields dealt with an almost identical drilling\\nproject, but at the motion to dismiss stage. There, the court held that the SEC\\nstated enough facts to satisfy the first Williamson factor. Shields, 744 F.3d at\\n645. The first factor was satisfied, even though the investors had the power to\\nremove the manager, because the manager hired itself as the main contractor\\nfor the “turnkey drilling and completion contracts.” Id. at 647 (emphasis\\nadded). Here, though, the investors were not locked into drilling and\\ncompletion contracts—they plausibly were able to cut Aschere and Arcturus\\nout of any completion contracts or subsequent operations.\\n The Defendants put forth enough evidence to raise a genuine issue\\nconcerning whether the Managers were effectively irreplaceable. We,\\ntherefore, reverse the district court’s ruling on the third Williamson factor.\\n III. CONCLUSION\\n In sum, the Defendants raised several issues of material fact that the\\ndistrict court failed to consider. For the foregoing reasons, the judgment of the\\ndistrict court is REVERSED and REMANDED for trial.\\n\\n\\n\\n\\n 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4410922/\", \"author_raw\": \"CARL E. STEWART, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4633669/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee v. ARCTURUS CORPORATION; Aschere Energy, L.L.C.; Leon Ali Parvizian, Also Known as Alex Parvizian; Robert J. Balunas; R. Thomas & Co., L.L.C.; Alfredo Gonzalez; AMG Energy, L.L.C., Defendants - Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10503 Document: 00515013011 Page: 1 Date Filed: 06/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n No. 17-10503 FILED\n June 27, 2019\n\nSECURITIES AND EXCHANGE COMMISSION, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nARCTURUS CORPORATION; ASCHERE ENERGY, L.L.C.; LEON ALI\nPARVIZIAN, also known as Alex Parvizian; ROBERT J. BALUNAS; R.\nTHOMAS & CO., L.L.C.; ALFREDO GONZALEZ; AMG ENERGY, L.L.C.,\n\n Defendants - Appellants\n\n\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n\n\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\nCARL E. STEWART, Chief Judge:\n IT IS ORDERED that our prior panel opinion, Securities and Exchange\nCommission v. Arcturus Corporation, 912 F.3d 786 (5th Cir. 2019), is\nWITHDRAWN and the following opinion is SUBSTITUTED therefor.\n The Defendants—Leon Ali Parvizian, Alfredo Gonzalez, Robert J.\nBalunus, Arcturus Corp., Aschere Energy, LLC, R. Thomas & Co., LLC, and\nAMG Energy, LLC—sold interests in several oil and gas drilling projects to\ninvestors. They never registered the interests as securities. The SEC called\nfoul and filed this civil enforcement action. Because the Defendants failed to\nregister interests in their drilling projects as securities, the SEC alleged that\n\f Case: 17-10503 Document: 00515013011 Page: 2 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nthey violated Sections 10(b) and 15(a) of the Securities Exchange Act\n(“Exchange Act”), 15 U.S.C. §§ 78j(b), 78o(a), Rule 10b-5, 17 C.F.R. § 240.10b-\n5, and Sections 5(a), 5(c), and 17(a) of the Securities Act (“Securities Act”), 15\nU.S.C. §§ 77e(a), 77e(c), 77q(a). After roughly a year and a half of discovery,\nboth parties filed motions for summary judgment. The district court granted\nthe SEC’s motion, holding that the oil and gas interests qualified as securities.\nThe Defendants now appeal. Because the Defendants raised significant issues\nof material fact, we reverse the district court’s decision and remand for trial.\n I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY\n A. FACTUAL BACKGROUND\n This case involves seven defendants, three individuals—Leon Ali\nParvizian, Alfredo Gonzalez, and Robert J. Balunus—and four companies—\nArcturus Corp., Aschere Energy, LLC, R. Thomas & Co., LLC, and AMG\nEnergy, LLC. Parvizian started three of the companies—Arcturus, Aschere,\nand AMG. He was also primarily responsible for running Arcturus and\nAschere. Parvizian also founded AMG, but passed management on to\nGonzalez, who has served as president since 2010. Balunus started and\nmanaged R. Thomas.\n The Defendants offered and sold interests in six oil and gas drilling\nprojects—Hillock, Piwonka, Conlee, Fraley-Nelson, Chips, and Wied Field.\nEach project had a managing venturer that supervised and managed the day-\nto-day operations. The managing venturer also earned management fees paid\nby the project. Together, Arcturus and Aschere were the managing venturers\nof all six projects—Arcturus managed four, and Aschere managed two. (We\nrefer to Arcturus and Aschere, collectively, as the “Managers.”)\n While Arcturus and Aschere managed the drilling projects, R. Thomas\nand AMG were primarily responsible for marketing and selling interests in the\n\n\n 2\n\f Case: 17-10503 Document: 00515013011 Page: 3 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nprojects. Neither company controlled or operated the drilling projects beyond\nmarketing, and neither company registered as a broker.\n R. Thomas entered into a consulting agreement with Aschere. Under the\nagreement, R. Thomas earned a 12% commission on each new investor it\nintroduced to the drilling projects. 1 AMG had a similar consulting agreement\nwith Aschere, under which it offered and sold interests in all six joint ventures\nin exchange for $500 per week for each AMG employee and a 12% commission\non each venture unit sold.\n 1. The Sales Process\n When the Defendants were selling interests in the drilling projects, they\nsought investors through a nationwide cold-calling campaign from 2007 to\n2011. 2 Potential investors came from a lead list that Parvizian purchased. 3\nThe Defendants also called previous investors about the drilling projects.\n The record indicates that the full cold-call process involved multiple\nconversations and multiple calls. (According to Alfredo Gonzalez, a former\nAmerest salesperson, the process “might take 5 phone calls or it might take 15\nphone calls.”) In the initial call, the salesperson would give a “short and sweet”\n\n\n 1 We refer to the joint venturers as “investors.” This is only for convenience and does\nnot reflect a legal judgment.\n\n 2 The majority of the information about the cold-call process came from SEC\ninvestigative interviews. The SEC took these interviews before filing its lawsuit in 2013.\n\n 3There is little evidence about the lead list in the record, but several individuals made\nstatements about the lead list in SEC investigative interviews. Robert Balunas, a former\nsalesperson at Amerest Securities, a company that contacted potential investors for Arcturus,\nstated that he had prior knowledge of and relationships with some of the investors his\ncompany sent to Arcturus. He did not know anything about the lead lists used by Parvizian.\nHe did state, however, that he only made offers to accredited investors.\n\n According to another person, the list might have included only accredited investors.\nHe also suggested that salespeople called both new and current clients. Parvizian stated that\nAMG Energy may have provided him with the lead list, but he was unsure.\n\n 3\n\f Case: 17-10503 Document: 00515013011 Page: 4 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nstatement, introducing himself and noting that he works for “a firm involved\nin [sic] oil and gas exploration.” The salesperson would then ask if the\nprospective investor had experience in oil and gas investing. If the investor\ndid, the salesperson would ask if the prospective investor was interested in\ninformation about a potential investment opportunity. If so, the salesperson\nwould transfer the prospective investor to a “registered broker.” 4 Or if the\nsalesperson was also a registered broker, then he would continue speaking\nwith the prospective investor. If the prospective investor expressed further\ninterest to the broker, the broker would have a receptionist send out\ninformation.\n Initially, Arcturus would send a one-page introduction letter, giving\nbasic information about the company and ways to seek out additional\ninformation. 5 This letter did not include any other materials. This process\nwas designed to form a “substantive relationship” with the new client. If the\nnew client expressed interest after additional calls, then Arcturus would send\nout a group of signing documents. The Defendants distributed five primary\nsigning documents: (1) a Confidential Information Memorandum (“CIM”),\nwhich gave a detailed overview of the drilling project; (2) a copy of the Joint\nVenture Agreement (“JVA”), which laid out the contractual rights and duties\nof each party; (3) a screening questionnaire, which asked various questions\nabout the investor’s education, investing history, and experience; (4) a Private\n\n\n\n 4Brokers could not communicate with potential investors in any other way. For\nexample, they did not have access to email.\n\n 5 Brian William Bull, the former chief compliance officer for Amerest Securities,\nsuggested that existing clients might not receive this introduction letter. It is unclear how\nmany existing clients Arcturus had. Bull did state, however, that “many” investors “had been\nclients for years.” It is unclear whether these investors were clients of Amerest, Arcturus, or\nboth. But at least some of the eventual investors had been Parvizian’s clients for years.\n\n 4\n\f Case: 17-10503 Document: 00515013011 Page: 5 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nPlacement Memorandum (“PPM”), which was an advertising brochure for each\ndrilling project with geological information, pricing, and potential returns; and\n(5) a subscription agreement, which served as the investor’s application. After\nsending these documents, a broker would make a follow-up call to ensure the\nmaterials arrived and were all in order.\n If the prospective investor decided to invest, then he would fill out\n“paperwork that was included” in the materials, including the questionnaire.\nArcturus would review the questionnaire to ensure that (1) the investor was\naccredited and (2) the investment was suitable for the particular investor. This\nreview included looking at the investor’s net worth and employment.\nAccording to Balunas, the Defendants would also check on the potential\ninvestor’s experience with oil and gas investing.\n After reviewing these documents, the Defendants would sometimes call\nprospective investors for additional information, though this would happen\nless often for “repeat clients.” The Defendants would then request that each\nprospective investor reverify their suitability information. Bull also suggested\nthat they would seek other updates on each investor’s suitability from “time-\nto-time.” If the investor did not qualify as an accredited investor, the\nDefendants would reject the investor. 6 Both Bull and Billy Cooper, a former\nArcturus employee, stated that the Defendants would reject non-accredited\ninvestors, but Bull could not remember any specific rejections. Cooper also\nbelieved that some of the projects may have had non-accredited investors.\nParvizian disagreed and maintained that every investor was accredited.\n\n\n\n\n 6 Even before rejecting an investor based on their questionnaire responses, Bull\nindicated that they would sometimes reject prospective investors before sending out the\nquestionnaire if it seemed like the investment would not be suitable.\n 5\n\f Case: 17-10503 Document: 00515013011 Page: 6 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n 2. The Investors\n Spread over the six projects, there were over 340 investors. 7 The record\ndoes not contain much information about these investors. The record only\ncontains direct evidence about the qualifications of roughly 25 investors,\nleaving nearly 315 unaccounted for. But of the 25 investors about whom we\nhave information, many had experience in the oil and gas field, direct\nexperience with the Defendants, or both. One investor has prior experience\nwith Orbit Energy. Another stated that he has “an engineering background”\nand “participated in other energy ventures with Escondido and Patriot\nEnergy.” Another stated that he has “done 83 of these projects over the last\nten years.” Another stated that he has “extensive experience in investing in\ndomestic energy and often defer[s] to the advice of [his] energy advisors and\npetroleum engineers.” Another has “past experience in oil and gas with various\npartial investment projects.” Another has “past experience in oil and gas with\nCocoal and British Petroleum.” Another has “previous oil & gas experience\nwith OG-7 Jay Pisquro.” Another “previously invested in three different oil\ndrilling and exploration projects.” Another “previously invested in at least\nseven different oil and gas drilling, exploration, and/or production projects,”\nsome of which “were joint ventures which, like Arcturus, required active\nparticipation and voting.” Another invested in two other drilling joint\n\n\n 7The number of investors is uncertain. For example, one document, prepared by the\nSEC, pegs the number at 380. The Defendants counted 341 investors. The Defendants,\nthough, counted investors more than once if they invested in more than one joint venture.\nFor example, if one investor took part in four joint ventures, he was counted four times. See\nAnother document in the record counts 349 investors. That document, however, lists many\ninvestors more than once.\n\n The parties also disagree on the number of investors per venture. According to the\nDefendants’ count, there were 94 investors in Hillock, 61 in Piwonka, 59 in Conlee, 4 in\nFraley-Nelson, 35 in Chips, and 88 in Wied Field. According to the SEC, there were 108\ninvestors in Hillock, 57 in Piwonka, 71 in Conlee, 4 in Fraley-Nelson, 35 in Chips, and 105 in\nWied Field.\n 6\n\f Case: 17-10503 Document: 00515013011 Page: 7 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nventures. And another has “past experience in oil and gas with Choice\nExploration.”\n Besides those with oil and gas experience, at least five other investors\nhave prior experience with the Defendants. Other investors had more general\nbusiness experience. For example, one investor is a senior vice president at\nCapitol One and manages an operating budget of $500,000,000. Another has\ninvested millions in publicly traded stocks and “numerous” joint venture\ninvestments.\n Beyond these investors, the record contained information about five\ninvestors who seemed to lack specialized experience.\n Outside of this direct information about investors, the Defendants made\na few global statements about the investors. Parvizian stated that every\ninvestor was accredited. Balunas discussed the investors at length. He\nrepeatedly emphasized that the investors were “sophisticated people.”\nBalunas stated that many investors “had their CPAs or attorneys call” the\nDefendants. And others personally visited the well or spoke with the drilling\noperator or onsite drilling engineers. Bull assumed that some investors were\nnew to oil and gas investment. But Cooper stated that “most of the people [he]\nspoke to [had] invested in oil and gas before.”\n 3. The Drilling Projects\n The drilling projects were split into multiple stages. First, in the\ncapitalization stage, the Defendants sought investors for each individual\ndrilling project. According to the signing documents, investors collectively\nwould pay a fixed price for a “Turnkey Drilling Contract.” The Manager of the\ndrilling project would then use those funds to purchase a working interest in a\nprospect well, which would entitle it to drill, test, and complete the well. The\nworking interest also entitled the project to a share of the well’s net revenue.\n\n\n 7\n\f Case: 17-10503 Document: 00515013011 Page: 8 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n After capitalization, the drilling project would begin initial operations.\nInitial operations included the drilling and testing of the prospect well. The\nManager of each drilling project was responsible for the initial operations.\nAschere, for example, was responsible for managing the initial operations of\nthe Conlee well. To complete the initial operations, the Manager would take\nthe investors’ funds and subcontract with a drilling operator who would drill\nand test the well. The operator for each project was identified in the\ncorresponding CIM.\n After drilling and testing the well, the Managers would recommend\nwhether or not to complete the well. 8 The investors would then vote on the\nrecommendation. If the investors voted in favor, then they would all be\nrequired to pay a completion assessment, which covered the cost of entering\ninto a “Turnkey Completion Contract.” If an investor did not pay the\ncompletion assessment, he abandoned his interest in the well, did not pay any\nfurther assessments, and had no right to any revenue.\n After completion, the investors could elect, at the Manager’s\nrecommendation, to engage in special operations. Special operations could\ninclude drilling deeper, fracking, or completing additional zones in the well.\nThese operations were subject to special assessments. The investors could also\nchoose to engage in additional operations, which were subject to additional\nassessments.\n B. PROCEDURAL HISTORY\n In December 2013, the SEC filed this civil enforcement action, alleging\nthat the Defendants violated Section 5(a) and (c) of the Securities Act and\nSection 17(a) of the Exchange Act. The SEC argued that interests in these\n\n\n 8 “In simple terms, [completing a well means] the gas well moves from construction to\nextraction phases.” JAMES T. O’REILLY, THE LAW OF FRACKING § 6:9 (2018). This process\nusually includes placing equipment into the well and drawing out oil or gas.\n 8\n\f Case: 17-10503 Document: 00515013011 Page: 9 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\ndrilling projects qualified as securities, and the Defendants tried to avoid\nfederal securities laws by calling the projects joint ventures and labeling the\ninvestors as partners. The Defendants argued that the projects were joint\nventures because the investors had powers, rights, and management\nobligations. Both parties filed motions for summary judgment, and the district\ncourt granted the SEC’s motion.\n The district court held that interests in the drilling projects were sold as\nsecurities pursuant to SEC v. W.J. Howey Co., 328 U.S. 293 (1946). The parties\nagreed that only one factor from Howey was in dispute—whether the investors\nexpected to profit “solely from the efforts of” the Defendants. This factor is\ngoverned by Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which sets out\nthree factors for determining whether investors expect to profit solely from\nthird-party efforts. The drilling interests qualified as securities for three main\nreasons, which correspond to the three factors in Williamson. First, the district\ncourt held that the investors had no real power to control the venture. Despite\nhaving some powers in the JVAs, the court held that these powers were illusory\nbecause the investors had no way of contacting each other, and the Defendants\nwould not provide contact information. Without the ability to communicate,\nthey could not amass the votes they needed to control the drilling projects.\n Second, the court held that the investors were inexperienced and lacked\nexpertise in the oil and gas field. The investors lacked experience, according\nto the district court, because the Defendants marketed their drilling interests\nthrough a broad cold-calling campaign. The investors were also forced to rely\non the Defendants to acquire all of their information.\n Third, the court held that the investors were reliant on the Defendants.\nThe Defendants controlled all of the investors’ assets, and a replacement\nmanager could not access those assets—only the Defendants could. The\ninvestors also relied on the Defendants for all of their information.\n 9\n\f Case: 17-10503 Document: 00515013011 Page: 10 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n II. DISCUSSION\n This court reviews a district court’s grant of summary judgment de novo,\nusing the same legal standard as the district court. Turner v. Baylor\nRichardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Summary judgment\nis appropriate where there is no genuine issue of material fact and the parties\nare entitled to judgment as a matter of law. Id. All reasonable inferences must\nbe drawn in favor of the nonmovant, but “a party cannot defeat summary\njudgment with conclusory allegations, unsubstantiated assertions, or only a\nscintilla of evidence.” Id. (internal quotation marks omitted).\n Under Section 5 of the Securities Act, it is “unlawful for any person,\ndirectly or indirectly” to use interstate commerce to offer to sell “any security”\nunless the person has filed a “registration statement” for the security. 9 15\nU.S.C. § 77e(c). The Securities Act broadly defines the term security to include\na long list of financial instruments, including “investment contracts,” the type\nof security at issue here. See 15 U.S.C. § 77b(a)(1). While Congress defined\nthe term “security,” it left it to the courts to define the term “investment\ncontract.” In Howey, the Supreme Court did exactly that and developed a\n“flexible” test for determining whether an investment contract qualifies as a\nsecurity:\n [A]n investment contract for purposes of the Securities Act means\n a contract, transaction or scheme whereby a person invests his\n money in a common enterprise and is led to expect profits solely\n from the efforts of the promoter or a third party . . . .\nHowey, 328 U.S. at 298–99. Distilled to its elements, an investment contract\nqualifies as a security if it meets three requirements: “(1) an investment of\nmoney; (2) in a common enterprise; and (3) on an expectation of profits to be\n\n\n\n 9 It is undisputed that the Defendants never filed a registration statement for the\ninterests in their drilling projects.\n 10\n\f Case: 17-10503 Document: 00515013011 Page: 11 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nderived solely from the efforts of individuals other than the investor.”\nWilliamson, 645 F.2d at 417–18 (citing SEC v. Koskot Int’l, Inc., 497 F.2d 473\n(5th Cir. 1974)).\n When applying this test, courts should disregard “legal formalisms” and,\ninstead, focus on the substance of the deal—“the economics of the transaction\nunder investigation.” Reves v. Ernst & Young, 494 U.S. 56, 61 (1990). Even\nthough certain contracts might “superficially resemble private commercial\ntransactions” and lack “the formal attributes of a security,” they still can\nqualify as securities. Youmans v. Simon, 791 F.2d 341, 345 (5th Cir. 1986)\n Here, the parties do not contest that the drilling interests met the first\ntwo Howey factors. 10 The primary issue is whether the drilling interests\nsatisfied the third factor—whether the investors expected to profit “solely from\nthe efforts of” the Managers.\n When determining whether investors expect to rely “solely on the efforts\nof others,” courts construe the term “solely” “in a flexible manner, not in a\nliteral sense.” Youmans, 791 F.2d at 345. And for good reason. If courts\ninterpreted “solely” in a literal way, a party could “evade liability” merely by\nparceling “out [minor] duties to investors.” Id. at 345–46. To prevent this\npossibility, courts find the third Howey factor met if “the efforts made by those\nother than the investor are the undeniably significant ones, those essential\nmanagerial efforts which affect the failure or success of the enterprise.”\nWilliamson, 645 F.2d at 418. Even though an investor might retain\n“substantial theoretical control,” courts look beyond formalities and examine\n\n\n\n\n 10 Gonzalez states, in one sentence, that none of the Howey factors were satisfied, but\nhis brief is dedicated solely to the third factor. Because he did not provide any support for\nhis argument, he waived it. United States v. Upton, 91 F.3d 677, 684 n.10 (5th Cir. 1996)\n(“[C]laims made without citation to authority or references to the record are considered\nabandoned on appeal.”).\n 11\n\f Case: 17-10503 Document: 00515013011 Page: 12 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nwhether investors, in fact, can and do utilize their powers. Affco Invs. 2001,\nLLC v. Proskauer Rose, L.L.P., 625 F.3d 185, 190 (5th Cir. 2010).\n Here, the court must apply these general principles to a partnership. 11\nInterests in a partnership can satisfy the third Howey factor and qualify as an\n“investment contract.” But not all partnerships qualify. For example, partners\nin a general partnership can guard “their own interests” with their “inherent\npowers” and do not need protection from securities laws—they can “act on\nbehalf of the partnership”; “bind their partners by their actions”; “dissolve the\npartnership”; and “are personally liable for all liabilities of the partnership.”\nYoumans, 791 F.2d at 346. General partners are, in short, “entrepreneurs, not\ninvestors.” Id. Accordingly, general partnership interests typically do not\nqualify as securities. Id. And a litigant trying to prove otherwise must\novercome the “strong presumption” that “a general partnership . . . is not a\nsecurity.” Nunez v. Robin, 415 F. App’x 586, 589 (5th Cir. 2011) (per curiam)\n(unpublished) (quoting Youmans, 791 F.2d at 346); see also Youmans, 791 F.2d\nat 346 (“A party seeking to prove the contrary must bear a heavy burden of\nproof.”).\n Limited partners are different. Unlike general partners, limited\npartners lack significant powers—their “liability for the partnership is limited\nto the amount of their investment”; “[t]hey cannot ordinarily dissolve the\npartnership . . . [or] bind other partners”; and “they have little or no authority\nto take an active part in the management of the partnership.” Youmans, 791\nF.2d at 346. Without any significant powers, a limited partner is like “a\nstockholder in a corporation.” Id. As a result, “limited partnership interests\n\n\n\n 11 This court applies the same analysis to partnerships and joint ventures. Youmans,\n791 F.2d at 346 n.2 (“Our discussion of partnerships applies with equal force to joint ventures\nsince this kind of business investment device is the same for purposes of the federal securities\nlaws.”).\n 12\n\f Case: 17-10503 Document: 00515013011 Page: 13 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nmay be considered a security.” Id. (citing Sibel v. Scott, 725 F.2d 995, 998 (5th\nCir.), cert. denied, 467 U.S. 1242 (1984)).\n While we typically employ a “strong presumption” that “a general\npartnership . . . is not a security,” Nunez, 415 F. App’x at 589 (quoting\nYoumans, 791 F.2d at 346), we have noted that even general partners can lack\nmanagerial powers. Labeling a partnership as general or limited does not\nalways reflect what really matters: the division of power among the partners.\nWhile general partners usually have an array of ways to influence the\npartnership, partnership documents or other barriers sometimes curtail their\npower. Under these circumstances, even a general partnership interest can\nqualify as a security.\n To guide courts in applying the third Howey factor to these in-between\nsituations, this court set forth the three Williamson factors—the primary\nsource of contention here. These factors flesh out situations where investors\ndepend on a third-party manager for their investment’s success, and each\nfactor is sufficient to satisfy the third Howey factor. Under the Williamson\nfactors, a partner is dependent solely on the efforts of a third-party manager\nwhen:\n (1) an agreement among the parties leaves so little power in the\n hands of the partner or venturer that the arrangement in fact\n distributes power as would a limited partnership; or (2) the\n partner or venturer is so inexperienced and unknowledgeable in\n business affairs that he is incapable of intelligently exercising his\n partnership or venture powers; or (3) the partner or venturer is so\n dependent on some unique entrepreneurial or managerial ability\n of the promoter or manager that he cannot replace the manager of\n the enterprise or otherwise exercise meaningful partnership or\n venture powers.\n\n\n\n\n 13\n\f Case: 17-10503 Document: 00515013011 Page: 14 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nWilliamson, 645 F.2d at 424. 12 Courts, however, are not limited to these three\nfactors—other factors could “also give rise to such a dependence on the\npromoter or manager that the exercise of partnership powers would be\neffectively precluded.” Id. at 424 n.15. But regardless of which factor is at\nissue, a party can only prove one of the Williamson factors by looking to the\nunique facts of the arrangement at issue. Differently put, a party faces a\n“factual burden” when proving one of the Williamson factors. Id. at 425.\n A. THE FIRST WILLIAMSON FACTOR\n The first Williamson factor is whether the drilling projects left the\ninvestors so little power “that the arrangement in fact distributes power as\nwould a limited partnership.” Id. at 424. In determining whether an\narrangement deprives investors of power, courts look to two sources of\nevidence. First, courts look to the legal documents setting up the arrangement\nto see if investors were given formal powers. See, e.g., id. (looking to the\n“partnership agreement” to see if partners were given power). Second, courts\nexamine how the arrangement functioned in practice, which includes looking\nfor barriers to investors using their powers. See, e.g., Nunez, 415 F. App’x at\n590 (looking to the fact that an investor exercised power over the partnership’s\nfinances); Long v. Shultz Cattle Co., 881 F.2d 129, 134 (5th Cir. 1989) (crediting\nthe jury’s conclusion that investors, in practice, followed the manager’s\n\n\n\n\n 12 A number of other circuits have adopted the Williamson factors as a way to analyze\nthe third Howey factor. See, e.g., SEC v. Shields, 744 F.3d 633, 644 (10th Cir. 2014) (adopting\nthe Williamson factors); United States v. Leonard, 529 F.3d 83, 90–91 (2d Cir. 2008) (same);\nSEC v. Merch. Capital, LLC, 483 F.3d 747, 755–56 (11th Cir. 2007) (same); Stone v. Kirk, 8\nF.3d 1079, 1086 (6th Cir. 1993) (same); Koch v. Hankins, 928 F.2d 1471, 1477–81 (9th Cir.\n1991) (same); Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 241\n(4th Cir. 1988) (same).\n\n 14\n\f Case: 17-10503 Document: 00515013011 Page: 15 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nrecommendations). How the arrangement functioned is typically the most\nimportant indication of whether investors had power. 13\n Here, this factor turns on six critical disputes—(1) the Managers’ formal\npowers as compared to the investors’ formal powers; (2) whether the investors\nexercised their formal powers; (3) the voting structure of the drilling projects;\n(4) information available to the investors; (5) communication among the\ninvestors; and (6) the number of investors. All these factors go towards\ndetermining whether the investors had power to control the drilling projects.\n 1. The Managers’ and Investors’ Formal Powers\n Arcturus and Aschere did possess a significant amount of power. First,\nand most significantly, the JVAs make clear that they had the power to control\n“the day-to-day Operations” of the drilling projects. The JVAs defined\n“Operations” broadly as any activity related to acquiring, drilling, testing,\ncompleting, equipping, or otherwise working on the prospect well. The ability\nto control the daily “Operations” also came with “full and plenary power” to,\namong other things, (1) retain operators to drill and complete wells, (2) conduct\n\n\n 13 Gonzalez dedicates much of his brief to arguing that the district court erred by\nlooking to post-investment conduct when it was determining the expectations of the parties\nat the time they entered the drilling investment contracts. This argument is unpersuasive.\nFirst, a recent opinion by this court explicitly held that post-investment conduct is relevant\nto determining the expectations of the parties at the time they entered the contract. See SEC\nv. Sethi, No. 17-41022, 2018 WL 6322153, at *3 n.3 (5th Cir. Dec. 4, 2018). Second, other\ncircuits allow courts to look at “post-investment conduct.” Shields, 744 F.3d at 646; see also\nMerch. Capital, 483 F.3d at 760; Koch, 928 F.2d at 1478 (looking to the “practical possibility\nof the investors exercising the powers they possessed pursuant to the partnership\nagreements.”). Third, even before the explicit holding in Sethi, this court, in nearly every\ncase, did in fact analyze post-investment activity. See, e.g., Nunez, 415 F. App’x at 590\n(looking to the fact that the investor exercised power over the partnership’s finances); Long,\n881 F.2d at 134 (crediting the jury’s conclusion that investors followed the manager’s\nrecommendations); Youmans, 791 F.2d at 347 (directing the trial court on remand to further\ndevelop the “practical application” of the relevant contract provisions). Fourth, Gonzalez\ncites no cases in support of his position—all his cited cases either (1) hold exactly the opposite\nof what he argues, or (2) are distinguishable because they address situations where investors\ndelegated power to a manager after forming the initial contract. See, e.g., Holden v.\nHagopian, 978 F.2d 1115, 1119 n.6 (9th Cir. 1992).\n 15\n\f Case: 17-10503 Document: 00515013011 Page: 16 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nsurveys, (3) execute “any and all contracts and agreements,” (4) make “all”\nelections or decisions and “bind the Joint Venture,” (5) make payments with\nfunds belonging to the projects, (6) execute operating agreements, and (7)\nexecute powers of attorney. Second, when dealing with third parties, the\nManagers had the power to execute contracts that contained “such provisions\nas the Managing Venturer deems expedient.”\n Third, the Managers had the power of the purse and could “charge the\nJoint Venture . . . all reasonable expenses incurred by the Managing Venturer\nin the operation of the Joint Venture.” Fourth, these powers were exclusive—\naccording to the JVA, no investor besides the Manager could “act on behalf of,\nsign or bind the Joint Venture with respect to Operations of the Joint Venture.”\nFinally, the Managers also had “sole and absolute discretion” to interpret\nambiguous or unclear provisions.\n While the Managers had significant power, the investors, at least\nformally, were not without countervailing powers. Most importantly, the\ninvestors had the power to remove Arcturus and Aschere as managers with a\n60% vote—a power this court has called “an essential attribute of a general\npartner’s . . . authority.” Youmans, 791 F.2d at 347. This court has also held\nthat similar removal provisions do not divest investors of their power.\nWilliamson, 645 F.2d at 409, 424 (suggesting that 60% and 70% removal\nrequirements did not shield the manager from removal); Youmans, 791 F.2d at\n346-47 (holding that the investors had power over the scheme, in part because\nof a majority vote removal provision); see also Holden, 978 F.2d at 1120 (finding\nno investment contract where manager could be removed with simple majority\nvote). Nor is the 60% requirement as burdensome as removal provisions that\nother courts have addressed. See, e.g., Merch. Capital, 483 F.3d at 757-58\n(holding that provisions requiring unanimous, for-cause removal made\nmanager “effectively unremovable”).\n 16\n\f Case: 17-10503 Document: 00515013011 Page: 17 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n The investors also had authority over almost all of the Managers’ powers.\nFor example, the JVAs clarify that the “Joint Venture and all of its affairs,\nproperty, and Operations shall be managed and controlled by a majority of the\nVenturers.” The JVA also qualifies the Manager’s power by giving the\ninvestors veto power—the seven “Operations” powers outlined above are all\nsubject to “the affirmative Vote of the Venturers.” If this provision was\nfollowed in practice, then the Manager could not bind the drilling project\nwithout the investors voting to affirm. The investors also had the power to\ndevelop rules and procedures governing meetings and voting, demand a\nmeeting, amend the JVA, receive financial information and information about\nthird-party transactions, and inspect the project’s books. The signing\ndocuments given to the investors also make clear that the investors will be\nrequired to take an active role in governing the drilling projects. They also\nclearly state that the venture is not a security, putting the investors “on notice”\nthat “federal securities acts” will not protect them. Williamson, 645 F.2d at\n422. Further, if an investor did not send money for an assessment, it was\ninterpreted as a “no” vote, so the baseline voting rules did not necessarily favor\nthe Managers, unlike other cases. See Merch. Capital, 483 F.3d at 760 (“[T]he\nvoting process was tilted in [the defendant’s] favor from the very start. The\npartnership agreement provided that unreturned and unvoted ballots were\nvoted in favor of management.”).\n Added together, these provisions, at least formally, give the investors\nsignificant control over the drilling projects. Indeed, nearly all of the\nManagers’ powers are subject to an affirmative vote by the investors. Other\ncases have held that investors with similar powers possessed control over the\npartnership. See, e.g., Koch, 928 F.2d at 1478–79 (holding that partners had\nat least formal power where “[a]dditional assessments of capital must be\napproved by 75 percent of the partnership units; a majority of the partnership\n 17\n\f Case: 17-10503 Document: 00515013011 Page: 18 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nunits can remove any person from a management position; decisions regarding\nthe management and control of the business must be made by a majority vote”).\n 2. The Investors’ Powers in Practice\n But, as the case law makes clear, formal powers are not dispositive—\ncourts must determine whether investors can and do exercise those powers.\nSee, e.g., Youmans, 791 F.2d at 347 (directing the trial court on remand to\nfurther develop the “practical application” of the relevant contract provisions).\nHere, the record suggests that the investors utilized their powers. The record\nshows votes taken on a variety of actions, such as increasing production units;\ncompletion; workover and recompletion; new projects; and dissolution. The\nrecord also contains communications from the Managers requesting a vote on\na subsequent cleanout proposal. Fifteen investors also submitted affidavits\ndeclaring that they had the power to, and did in fact, vote on a variety of\ndecisions. And the record does not show that Arcturus or Aschere took any\nsignificant actions without the investors’ prior approval. The fact that the\ninvestors voted and took actions to manage the drilling projects makes this\ncase different than others where the district court appropriately granted\nsummary judgment. See Sethi, 2018 WL 6322153, at *4 (affirming the district\ncourt’s grant of summary judgment where “[t]he investors never held a\nmeeting and did not vote on any matter.”).\n 3. The Projects’ Voting Structure\n The SEC and the district court placed great weight on the contract\nprovisions covering completion assessments and additional assessments.\nWhen faced with the Managers’ recommendation to complete a well and enter\na turnkey completion contract, the investors can vote for or against completion.\nIf the investors vote to complete the well, then the project charges them a\ncompletion assessment of up to $100,000. If an investor fails to pay the\nassessment, then he is considered to have abandoned his interest. For\n 18\n\f Case: 17-10503 Document: 00515013011 Page: 19 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nadditional assessments, if the investors vote to approve additional work, each\ninvestor has one of three choices. Investors must either pay the assessment,\nabandon their interest, or pay a penalty if they pay the assessment late. An\ninvestor who pays late becomes a non-participating investor and can be\nreinstated only by paying the penalty. This arrangement, according to the\nSEC, presents investors with a Hobson’s choice—follow the manager’s\nrecommendation or you are out. 14\n These provisions, however, do not operate like the SEC suggests. To help\nclarify, these provisions must be placed in the context of an inherently\nspeculative investment like drilling. One law review article describes the\ninitial payment in these contracts as the cost of “being allowed to participate”\nuntil the point when the investors choose whether to complete the well. R.K.\nPezold & Danny Richey, The “Industry Deal” Among Oil and Gas Companies\nand the Federal Securities Acts, 16 Tex. Tech L. Rev. 827, 833 (1985)\n[hereinafter, Industry Deal]. Splitting the process into drilling and completion\nmakes sense because it allows investors to get a glimpse inside the well without\npaying for completion upfront. Only later, after gathering more information\nfrom the drilling process, do investors choose if they want to complete the well.\nThis split between the initial drilling and completion effectively gives investors\nan additional chance to cut their losses. The signing papers follow this general\nsplit and make clear that investors are only entering a turnkey drilling\ncontract—completion, which is not mandatory, requires additional investment.\n\n\n\n\n 14 The SEC argues that investors who oppose the Manager’s recommendation are\neither charged a penalty or kicked out of the project. But that assertion is not true. We\ncannot find anywhere in the offering documents where an investor is kicked out for voting\nagainst the Manager’s recommendation. The only reason an investor is kicked out is for\nfailing to pay his proportionate share of completion costs after an affirmative vote has been\ntaken.\n 19\n\f Case: 17-10503 Document: 00515013011 Page: 20 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n Returning to the investors’ choices with this basic background, the\narrangement does not strip the investors of power. If an investor votes for\ncompletion, he does not lose power because he must pay for completion costs.\nIf the investor thinks the well is a lost cause, then allowing him to abandon his\ninterest also does not strip him of power. The entire project is presumptively\norganized around one well—if the investor thinks it is not going to be profitable\nafter drilling, then he likely would want out of the project without wasting\nadditional money. 15 These investors are free to “stand aside, incur no further\ncosts, and allow the ‘consenting owners’ to proceed with any completion\nactivities desired.” Industry Deal, at 833 n.27.\n When it comes to subsequent operations, if an investor is unclear what\nto do, he can avoid paying. The investor then becomes a non-participating\ninvestor. But the investor’s initial silence is not permanent—the investor can\npay a “pre-agreed and substantial economic penalty” and become a\nparticipating investor again. Industry Deal, at 834 n.27. This penalty also\nmakes sense. When an investor fails to pay operation costs, other participating\ninvestors are forced to take up the financial slack, increasing their risk. The\npenalty serves to compensate the “risk-taking” investors who bore the added\nrisk. Industry Deal, at 834 n.27. While the SEC argues that these\nconsequences eliminate any voting power, they can be seen in a more positive\nlight as preventing free-riding.\n The case law, while not oil-and-gas specific, further supports this\nintuition. In Williamson, this court did not attach any significance to a similar\nvoting plan. 645 F.2d at 409. The voting plan there required the manager to\npresent the investors with “any proposal for development.” Id. at 409. The\n\n\n 15An email from at least one investor confirms this intuition. In the email, the\ninvestor, angry at the project’s failure, says that he is “far more comfortable not losing more\nmoney than . . . putting more into this losing project.”\n 20\n\f Case: 17-10503 Document: 00515013011 Page: 21 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\ninvestors could approve the proposal by a “vote of the holders of 60% or 70% in\njoint venture interests.” Id. Importantly, if the investors accepted the\nproposal, the investors who approved it were “obligated to purchase the\ninterests of those who [did] not.” Id. Structurally, the consequences were like\nthose here—vote yes, pay more money; vote no, you are out. 16 If such a\nstructure was not a Hobson’s choice there, it is unclear why it would be here.\n 4. The Source of Investors’ Information\n The SEC argues, and the district court held, that the investors’ powers\nwere weak because they relied on the Managers for information about the\ndrilling projects. 17 Some case law does suggest that investors are powerless\nwhen all of their pertinent information comes from the managers. 18 But mere\ncontrol over information does not, on its own, strip investors of their power to\nvote. The source of information only matters when the investors do not receive\nenough information to make an educated decision. See Sethi, 2018 WL\n6322153, at *4 (affirming the district court’s grant of summary judgment\nbecause the defendant “gave the investors little to no information”); Merch.\nCapital, 483 F.3d at 759 (“[The defendant] controlled how much information\n\n\n 16The main difference was that dissenters in Williamson got their investments back,\nbut that has more to do with riskiness than control of the venture.\n\n 17 Control of information can go to the first or second Williamson factors. See Long,\n881 F.2d at 137. It goes to the first factor when the party in control of information prevents\notherwise competent investors from exercising control over the partnership or venture. For\nexample, the controlling party can provide only a small amount of information that supports\nits position. See Merch. Capital, 483 F.3d at 759. Control of information goes to the second\nfactor when the investors are not sophisticated enough to understand the information they\nare given. See Long, 881 F.2d at 135–36.\n\n 18 The SEC relies on Long for this point, but this reliance is misplaced. Long was\nprimarily about whether investors can acquire experience and knowledge from the\ndefendant—the second Williamson factor—not the source of the information. When it came\nto the first Williamson factor, the court in Long relied on the jury’s conclusion that the\ninvestors relied exclusively on the defendant’s recommendations, as established by a\ndocumented pattern of voting. See Long, 881 F.3d at 134.\n 21\n\f Case: 17-10503 Document: 00515013011 Page: 22 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nappeared in the ballots, and did not submit sufficient information for the\npartners to be able to make meaningful decisions to approve or disapprove debt\npurchases.”). In Merchant Capital, for example, the Eleventh Circuit held that\ninvestors could not effectively exercise their voting rights because the manager\nonly gave investors three pieces of information, which was not “sufficient\ninformation for the partners to be able to make meaningful decisions.” Id. at\n759. This conclusion was established at trial by expert testimony. Id.\n This case is not like Merchant Capital. The record suggests that\ninvestors had numerous sources of information. The Managers sent email\nupdates to the investors on numerous occasions. Some emails contained day-\nby-day updates. Other emails in the record had attachments of\n“comprehensive digital daily drilling reports.” Another email references a 24-\nhour “video surveillance” system being installed for remote access of visual\nmanagement of drilling operations.” Some emails in the record welcomed\ninvestors to come visit the drilling site. And fifteen different investors\ncorroborated this record evidence with affidavits, declaring that they stayed\nwell-informed through “persistent status updates” in the form of “geologic data,\nwell data, proposed oil and gas contracts, . . . video surveillance and other forms\nof live monitoring.” All this information goes far beyond the three pieces of\ninformation provided to investors in Merchant Capital. More importantly, this\ncourt does not have the “trial testimony” of numerous witnesses and experts to\ndetermine, as a matter of law, that the investors had enough information to\n“make an informed decision.” Merch. Capital, 483 F.3d at 758.\n The SEC also seems to suggest that the investors lacked control because\nthe Managers picked the experts who were providing much of the technical\ndata. But it is unclear whether this choice mattered. It is possible, for\nexample, that the Managers were simply conduits for information—the\nconsultants sent the Managers information about the well, which the\n 22\n\f Case: 17-10503 Document: 00515013011 Page: 23 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nManagers then passed to the investors. As noted above, the Managers\nsometimes passed along the raw data they received from the operators. If the\ninvestors and Managers had access to the exact same data, the investors could\ndraw their own conclusions about the prospect wells. And the SEC does not\npoint to any facts showing that the consultants presented biased information.\nNor does the SEC point to any facts showing that the Managers misled the\ninvestors with false or altered information.\n 5. Investor Communications\n The SEC argues that the investors’ powers were useless because they\ncould not contact each other and coordinate their votes. The SEC also argues\nthat the Defendants would not release investor contact information. The\nrecord lends some support to these contentions. 19 According to one investor,\nDouglas Traver, Parvizian withheld investor information at least once. Four\nof the six JVAs also protected investor contact information as “confidential and\na trade secret of the Managing Venturer.” For these four projects, no investor\nwas entitled to learn the identity of other investors. And when the Managers\nsent emails to all of the investors on a given project, they generally blind-copied\nthe recipients, preventing them from easily contacting other investors. Most\ntroublingly, one investor, Richard Ullrey, declared that Parvizian threatened\nlegal action against him for contacting other investors.\n The case law adds force to these arguments. Courts have previously held\nthat investors might lack real power if they are unacquainted and unable to\n\n\n\n\n 19 The district court placed weight on the fact that the investors were “located across\nthe United States.” But this factor originated with a Supreme Court opinion from 1946, and\nit is antiquated today. Howey, 328 U.S. at 299. The investors, if they had contact information\nfor each other, could communicate using telephone, email, text messages, or video calls.\nWhile physical proximity still deserves some weight—it might, for example, play some role\nin facilitating introductions—it is not necessarily a critical factor with the many forms of\ncommunication available today.\n 23\n\f Case: 17-10503 Document: 00515013011 Page: 24 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\ncommunicate. Merch. Capital, 483 F.3d at 758 n.8 (holding that partners did\nnot have meaningful voting power, in part, because “[s]uch a move would have\nrequired a two-thirds vote of geographically distant, unacquainted partners”);\ncf. Howey, 328 U.S. at 299.\n But the record is not as clear as the SEC suggests. The record shows\nthat the investors did in fact communicate with each other. They\ncommunicated on phone calls. The record also contains emails between a\nmultitude of investors communicating about a vote to complete a drilling\nproject. Several investors also declared that they communicated with each\nother at venture meetings. Another investor declared that he received investor\ncontact information. The record also shows documents in which the Managers\nidentified the other investors. And even though Ullrey declared that he feared\ncontacting other investors after Parvizian allegedly threatened him, he\nnevertheless sent emails to other investors two years later.\n The district court did not analyze these documents. With so many\ninvestors declaring that they could communicate with each other, and evidence\nof actual communications, the Defendants raised a genuine issue about\nwhether the investors could communicate with each other and organize.\nUllrey’s potentially conflicting statements are a case in point on why a full\nfactual hearing with cross-examination is needed.\n 6. The Number of Investors\n Each drilling project had anywhere from 35 to 108 investors. These\nnumbers run on the high end of the case law. And they seem to be on the high\nend of industry norms. 20 But at least one case held that 160 investors in a\npartnership was not a number so large that each partner’s role was “diluted to\n\n\n 20In Industry Deal, the authors explain that these contracts are normally structured\nwith three investors and an operator on a “third-for-a-quarter” basis. Industry Deal, at 833.\nInvestors pay one-third of the drilling costs and receive one-quarter of the revenue.\n 24\n\f Case: 17-10503 Document: 00515013011 Page: 25 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nthe level of a single shareholder.” Koch, 928 F.2d at 1479 & n.12; see also\nRivanna, 840 F.2d at 242 n.10 (4th Cir. 1988) (Powell, J., sitting by\ndesignation) (finding that a partnership with 23 members was not a security).\nFurther factual development is needed to determine whether the size of each\ndrilling project stripped the investors of their power.\n 7. Conclusion of the First Williamson Factor\n In sum, there is evidence in the record that (1) the investors had formal\npowers, (2) they used these powers, (3) the voting structure was not necessarily\ncoercive, (4) the investors received information, (5) they communicated with\neach other, and (6) the number of investors was not so high that it eliminated\nall of their power. We reverse the district court’s ruling on the first Williamson\nfactor.\n B. THE SECOND WILLIAMSON FACTOR\n The second Williamson factor is whether the drilling project investors\nwere “so inexperienced and unknowledgeable in business affairs” that they\nwere “incapable of intelligently exercising” their powers. Williamson, 645 F.2d\nat 424. The second Williamson factor applies to both investors and offerees.\nGenerally, an interest in a partnership is more likely to be a security if it is\nsold to “inexperienced and unknowledgeable members of the general public.”\nId. at 423. But proving that investors are inexperienced requires evidence\nabout the investors themselves. See Merch. Capital, 483 F.3d at 762 (“[T]he\nSEC presented uncontradicted evidence that the individual partners had no\nexperience in the debt purchasing business.”); Nunez, 415 F. App’x at 589\n(examining the experience of the individual plaintiff); Williamson, 645 F.2d at\n424–25 (examining the experience of each investor). And investor expertise\n“must be considered in relation to the nature of the underlying venture.” Long,\n881 F.2d at 135. This requirement, however, should not be read to suggest\nthat investors necessarily need a specialized background. If evidence shows\n 25\n\f Case: 17-10503 Document: 00515013011 Page: 26 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nthat an investor can intelligently control his investment, then courts do not\nrequire specialized experience. See, e.g., Robinson v. Glynn, 349 F.3d 166, 171\n(4th Cir. 2003) (holding that specialized experience was not required because\nthe investor showed he was capable of managing his investment); Youmans,\n791 F.2d at 343, 347 (finding the plaintiff, a physician, sufficiently experienced\nbecause he “also engaged in a number of business transactions not connected\nwith [the defendants]”).\n For example, in Long the investors purchased interests in a cattle farm,\nwith each investor buying individual cows that were jointly managed by the\ndefendants. 881 F.2d at 134–136. One important question was whether the\ninvestors had enough knowledge to manage their own herd of cattle. And when\nanswering this question, the court did not look only to investors’ experience in\ncattle raising—it looked to the investors’ attempts to manage the cattle they\npurchased from the defendants.\n Looking at those actions, the court easily concluded that the investors\n“lacked the experience necessary to care for, feed, and market their cattle.” Id.\nat 135. Some investors “visited the feedyard on one occasion,” but “there was\nno evidence that [they] sought to give any individual instruction regarding the\ncare and feeding of their cattle.” Id. One of the investors even “expressed the\nmistaken impression that a heifer was a breed of cattle.” Id. The investors’\nactions, established at trial, showed that they could not manage their\ninvestments, and their lack of specialized experience was the reason why.\n Similarly, in Nunez an investor-plaintiff argued that he was forced to\nrely on the manager because he lacked experience in “sand and gravel mining.”\n415 F. App’x at 589. The investor, however, had taken a variety of actions to\nmanage his investment. Id. at 590 (“The record establishes that [the investor]\nparticipated in other managerial decisions in his role as managing partner.”).\nEven if the investor lacked specialized experience, he failed to prove that this\n 26\n\f Case: 17-10503 Document: 00515013011 Page: 27 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nlack of experience prevented him from “meaningfully exercis[ing] his\nmanagerial powers.” Id. at 591.\n 1. The Investors\n Here, the SEC argues that the investors were inexperienced for two\nreasons. First, the Defendants engaged in an indiscriminate cold-calling\ncampaign that did not seek out experienced investors. Second, the SEC points\nto statements from four investors that they were inexperienced in drilling\ninvestments. These arguments are not dispositive—at summary judgment, we\ncannot make an inference about a group of over 340 investors based on this\nlimited evidence.\n The cold-calling campaign is probative of the investors’ experience. In\nassessing the second Williamson factor, courts rightly examine how a\npartnership acquired its members. See, e.g., Long, 881 F.2d at 135 (holding\nthat investors in a cattle farm were not experienced, in part, because the\nscheme “advertised its feeding program in financial publications . . . and in\nlarge-city newspapers . . . and did not advertise in agricultural periodicals or\nin other publications likely to have a readership acquainted with cattle-\nfeeding”). A court can glean information about investors by examining how\nand from where the partnership attracted them. But when determining\nwhether investors are experienced, looking at marketing methods is, at best,\ncircumstantial evidence about the investors. 21 A better place to look is directly\n\n\n 21 The SEC stressed the nationwide cold-calling campaign in their briefs and oral\nargument. By emphasizing that the Defendants called investors across the country from a\npurchased lead list, the SEC likened the Defendants’ marketing strategy to that of an\nindiscriminate telemarketer. If the SEC had presented undisputed evidence that the\nDefendants used indiscriminate marketing methods, then we agree that this case would fall\ninto the purview of Long. But this case differs from Long and other similar cases.\n\n In Long, the court confronted undisputed evidence that the defendants sought\ninexperienced investors—the defendants conceded so at trial. Id. at 135. Here, by contrast,\nthe Defendants maintain that they did not seek out inexperienced investors. And they\n 27\n\f Case: 17-10503 Document: 00515013011 Page: 28 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nat the investors’ actual qualifications. The case law follows this analysis,\nlooking to investor qualifications and using advertisement methods, if at all,\nmerely to bolster a conclusion—it is rarely the only piece of evidence. See, e.g.,\nLong, 881 F.2d at 134–36 (looking to actual evidence of investor experience and\nthen looking to advertising method); Aqua-Sonic, 687 F.2d 577, 583 (2d Cir.\n1982) (same); see also Williamson, 645 F.2d at 425 (looking to each investor’s\nbusiness experience alone). And when it comes to the investors’ actual\nexperience, the record does not clearly entitle the SEC to summary judgment.\n As the Defendants point out, the record shows that many investors did,\nin fact, have experience in oil and gas drilling. For example, one investor\ndeclared that he had “an engineering background” and “participated in other\nenergy ventures with Escondido and Patriot Energy.” In an email, another\ninvestor disclosed that he had “done 83 of these projects over the last ten\nyears.” Another investor declared that he has “extensive experience in\ninvesting in domestic energy and often defer[s] to the advice of [his] energy\nadvisors and petroleum engineers.” Still others had general business\nexperience.\n The record also shows that various investors had advisors helping them\nmake decisions—an important factor in the caselaw. See, e.g., Robinson, 349\nF.3d at 171; Banghart v. Hollywood Gen. P’ship 902 F.2d 805, 808 n.5 (10th\nCir. 1990); Rivanna, 840 F.2d at 242 n.10. Balunas stated that many investors\n\n\n\n\nsupport this argument with competent summary judgment evidence, which, if believed by a\nfactfinder, would show that they sought experienced investors. The record suggests that the\npotential investors on the lead list were vetted for investing experience before being added to\nthe list. The record also suggests that many investors had prior experience with the\nDefendants. At summary judgment, viewing the evidence in the light most favorable to the\nDefendants, we cannot conclude that the Defendants sought out inexperienced investors.\nThe SEC failed to eliminate genuine issues of material fact about the scope of the Defendants’\nmarketing and the types of investors they targeted. These questions are better resolved by\na factfinder.\n 28\n\f Case: 17-10503 Document: 00515013011 Page: 29 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n“had their CPAs or attorneys call” the Defendants before investing. Others\npersonally visited the well or spoke with the drilling operator or onsite drilling\nengineers. Another stated that he has “extensive experience in investing in\ndomestic energy and often defer[s] to the advice of [his] energy advisors and\npetroleum engineers.”\n The Defendants also required the investors to represent that they had\nbusiness experience and were capable of intelligently exercising their\nmanagement powers. 22 The CIM made clear that only qualified investors were\neligible. The investors were also required to represent that they were\naccredited investors. 23 And several of the investors invested in prior Parvizian\nventures, a factor that this court previously relied upon when holding that\ninvestors were experienced. See Williamson, 645 F.2d at 425 (“The defendants’\nexhibits contain documents from previous ventures which indicate that [two\ninvestors] had already been members of other joint ventures organized by [the\nmanagers].”).\n\n\n 22 The Defendants belatedly argue that they might qualify for an exemption from the\nSecurities Act. In 2012, the SEC amended Rule 506 to permit “an issuer to engage in general\nsolicitation or general advertising in offering and selling securities pursuant to Rule 506”\nwithout registering the securities, so long as the issuer meets two requirements: (1) “all\npurchasers of the securities are accredited investors” and (2) “the issuer takes reasonable\nsteps to verify that such purchasers are accredited investors.” SEC, Eliminating the\nProhibition Against Gen. Solicitation & Gen. Advert. in Rule 506 & Rule 144a Offerings,\nRelease No. 3624 (July 10, 2013). Because the Defendants required all investors to represent\nthat they were accredited investors, Parvizian argues that this exception applies.\n\n Parvizian waived this argument by not raising it earlier. Hightower v. Tex. Hosp.\nAss’n, 73 F.3d 43, 44 (5th Cir. 1996) (holding that arguments raised for the first time in a\npetition for rehearing were “raised too late in the appellate process to be useful to this court,\nand they are deemed waived and have played no role in our decision”). But even if he had\nraised it, the transactions at issue occurred before these amendments, and he cites no\nlegislative or judicial authority that they should apply retroactively.\n\n An “accredited” investor is a person with a net worth over $1,000,000 independently\n 23\n\nor combined with a spouse or with individual income over $200,000 or joint income over\n$300,000.\n\n 29\n\f Case: 17-10503 Document: 00515013011 Page: 30 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n The SEC specifically points to statements by Ullrey that he “relied on\n[Parvizian’s] determination [that completion of a well was appropriate] with\nno means to verify that this determination was correct” when he voted to\ncomplete a well. But many other courts have refused to transform an\ninvestment into a security based on similar statements without further\ncorroborating proof. See, e.g., Nunez, 415 F. App’x at 589; Robinson, 349 F.3d\nat 172; Banghart, 902 F.2d at 808 n.5. At summary judgment, this evidence is\ninsufficient to eliminate all questions of material fact.\n While Ullrey implies that he was an unsophisticated oil and gas investor,\nhis email to Parvizian—one of the few emails we have from him—paints a\ndifferent picture. That email states that (1) he understood a fair amount of the\nunderlying “geology” of different wells and felt capable of “comparing” reports\nfrom “each geologist”; (2) he was comfortable analyzing the “engineering”\nacross wells; (3) he knew many drilling acronyms and terms; and (4) he knew\nhow to analyze production zones and past production history. As one example\nthat he might not be as unsophisticated as the SEC argues, he specifically\nasked why fracking technology had not been used even though “the gas\nproduction has been 140 MCF monthly for 2008 and 2009” and “the fractional\ntechnology has been available for at least as long as this well has been in\nexistence.”\n Outside of questions about his technological knowledge, the summary\njudgment record does not show conclusively that Ullrey was unsophisticated.\nHe had an investment advisor he consulted. And, as noted above, courts have\nheld that an advisor is a critical fact showing that an investor does not lack\nsophistication. See, e.g., Robinson, 349 F.3d at 171; Banghart, 902 F.2d at 808\nn.5; Rivanna, 840 F.2d at 242 n.10. He was a CPA and stated that he would\nfeel comfortable analyzing the finances of the joint venture. He also organized\na lot of investors into an email thread.\n 30\n\f Case: 17-10503 Document: 00515013011 Page: 31 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n This mixed record about Ullrey is a case in point. The summary\njudgment evidence about Ullrey is mixed, he has not been subjected to cross-\nexamination, and his statements present quintessential credibility\ndeterminations. On summary judgment with the current record, we cannot\nconclude, as a matter of law, that Ullrey was inexperienced, as inexperienced\nis defined by Williamson and its progeny. A jury is better suited to determining\nwhether Ullrey was capable of intelligently controlling his investments.\n Nor can the court determine whether any of the unidentified investors\nwere inexperienced. Through competing summary judgment motions, both\nparties asked the court to determine that the pool of over 340 investors had or\nlacked experience based on limited evidence about roughly 25. At summary\njudgment, the court cannot make factual inferences about roughly 340\ninvestors based on such limited evidence, especially when that evidence is\nmixed.\n 2. The Offerees\n The SEC also argues that the Defendants targeted inexperienced\nofferees. But the record with respect to offerees is limited. And the limited\nsummary judgment record does not allow us to conclude, as a matter of law,\nthat the offerees were necessarily inexperienced.\n First, the tenor of the evidence is that the cold-call list was not meant to\ninclude inexperienced offerees. Cooper stated that the list might have included\nonly accredited investors. He also suggested that salespeople did not target\nonly new, accredited clients—they also called current clients, who would have\nprior knowledge of the Defendants. This prior relationship, as noted above, is\nan important factor in the caselaw. See Williamson, 645 F.2d at 425. Balunas\nalso indicated that he only made offers to accredited investors. Meanwhile, the\nSEC presented no evidence to challenge these facts, which we must consider in\nthe light most favorable to the Defendants.\n 31\n\f Case: 17-10503 Document: 00515013011 Page: 32 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n Second, the evidence about investors—a sample that sheds light on the\nofferees—indicates that many were experienced in oil and gas investment.\nOther courts have used similar reasoning, inferring the offerees’ qualifications\nfrom the group of eventual investors. For example, in Aqua-Sonic, the Second\nCircuit used investor qualifications to shed light on the type of investor that\nthe defendant was targeting (i.e., to determine the offerees’ qualifications). 687\nF.2d at 583–84 (“However, none of the 50 licensees had any such [specialized]\nexperience. This was not mere coincidence. The record does not indicate that\nany attempts were made to locate such purchasers.”). Taking the eventual\ninvestors as a sample of the offerees, we cannot conclude that the offerees\nlacked experience. But we are equally incapable of making the opposite\ninference. Both parties seek to use a small subset of investors to establish the\nexperience level of the entire group of offerees. And they both seek to do so\nwithout any direct evidence about the offerees’ qualifications. Given the\nlimited record and the procedural posture—summary judgment—we cannot\ndetermine whether the offerees were experienced or not. This factual\ndetermination is better left to a finder of fact.\n 3. Conclusion of the Second Williamson Factor\n These facts taken together raise a genuine issue about the offerees’ and\ninvestors’ knowledge and experience. 24 The SEC’s evidence does show that at\n\n\n\n\n 24 The SEC argues that all investors and offerees need specialized experience. But no\ncourt has ever explicitly held that every investor needs specialized experience. Courts,\ninstead, have taken a holistic view of the investors, the type of business at issue, and the deal\nstruck by the parties. See, e.g., Long, 881 F.2d at 134–136; Howey, 328 U.S. at 296. These\nfacts, along with others, help the court determine whether the investors had enough\nexperience to intelligently exercise their partnership powers. We note, however, that in at\nleast one other case, we did not require all investors in a partnership to have specialized\nexperience where other evidence showed they could control their investments. See\nWilliamson, 645 F.2d at 424–25.\n\n 32\n\f Case: 17-10503 Document: 00515013011 Page: 33 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nleast some investors were not experienced, 25 but not enough to grant summary\njudgment in the face of the Defendants’ competing evidence, especially on “a\nquestion of fact which should be resolved in the first instance by the trial\ncourt.” Koch, 928 F.2d at 1479. We, therefore, reverse the district court’s\ndecision to grant summary judgment on the second Williamson factor.\n C. THE THIRD WILLIAMSON FACTOR\n The third Williamson factor is whether the investors are so “dependent\non some unique entrepreneurial or managerial ability of [the Managers] that\n[they] cannot replace the manager of the enterprise or otherwise exercise\nmeaningful partnership or venture powers.” Williamson, 645 F.2d at 424. As\nexplained in Williamson, this factor looks to the unique capabilities of the\nmanager. If the manager has a “non-replaceable expertise” that drew the\ninvestors to the venture, then they might “be left with no meaningful option”\nother than the manager. Id. at 423. For example, investors may be induced to\nenter a “real estate partnership on the promise that the partnership’s manager\nhas some unique understanding of the real estate market in the area in which\nthe partnership is to invest.” Id. Any right to “replace the manager” would\nonly come at the expense of “forfeiting the management ability on which the\nsuccess of the venture is dependent.” Id. Dependence, however, does not\nextend to the delegation of management duties—“[t]he delegation of rights and\nduties—standing alone—does not give rise to the sort of dependence on others\nwhich underlies the third prong of the Howey test.” Id.\n\n\n\n\n 25 This evidence consists mainly of brief statements by investors. One investor said\nthat he did not “understand everything,” but the record contains no other information about\nhim. Another investor claimed that she was a “novice investor.” Again, the record has no\nfurther information about her. Another claimed that he was “new to the oil industry.” The\nrecord contains no further evidence about him either. Finally, one “inexperienced” investor\nhad over $2,000,000 in assets, was an engineering director, and had an investment advisor.\nA fact-finder is better suited to weigh the probative value of this evidence.\n 33\n\f Case: 17-10503 Document: 00515013011 Page: 34 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n Here, the SEC argues that the Managers were effectively irreplaceable\nnot because of some special skill, but because they had the sole ability to\nenforce drilling contracts with the subcontractors and unfettered control over\nthe drilling projects’ assets. According to the CIMs and JVAs, all investor\nfunds would be transferred to one of the Managers, who would then\nsubcontract with other companies, which were identified in the CIMs, to\ncomplete the drilling. According to the SEC, this created two problems. First,\neven if the investors removed the Managers, they would still be party to the\ncontracts with the subcontractors, making the investors reliant on them—even\nif removed, the Managers still had the power to enforce, or not enforce, the\ndrilling contracts. Second, the Managers controlled all of the investors’ funds.\nFunds were transferred from the drilling projects into an operating account at\nAschere or Arcturus, and investors had no right to the funds. At least one case\nheld that a manager is effectively irremovable where it controls investors’\nfunds and has the sole ability to recoup them. Merch. Capital, 483 F.3d at 764.\n Neither of the SEC’s arguments is convincing. The first argument is\nunconvincing because the record is not clear enough to say, as a matter of law,\nthat the web of contracts between the projects, Managers, and subcontractors\nmade the Managers irremovable. Nothing in the record demonstrates that, if\nArcturus or Aschere were removed, the drilling projects would be unable to\nenforce their contracts. On the contrary, the record suggests that the drilling\nprojects would still have contracts with Aschere and Arcturus, who, in turn,\nwould have enforceable contractual relationships with the subcontractors.\nNothing in the record suggests that a new manager could not enforce the\ncontract with Aschere or Arcturus through this relationship. And if Aschere\nor Arcturus failed to perform after being paid, the drilling projects would be in\nthe same position as if some other contracting company failed to perform.\n\n\n 34\n\f Case: 17-10503 Document: 00515013011 Page: 35 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n The state of the record in this case contrasts markedly with Merchant\nCapital—the primary case that the SEC cites for their argument. In Merchant\nCapital, the structure of the contractual relationships was like the structure\nhere. The defendant managers there took funds from multiple investors,\npooled them, and then pooled them again. The defendants, on behalf of the\npartnership, entered into a contract with a service-providing company, New\nVision, who then entered into a contract with another company, EAM. Investor\nfunds were pooled by New Vision, and then repooled with other funds by EAM.\nThe ultimate question was whether (1) individual investors could get their\nfunds back from the defendant, or (2) they depended on the defendant to get\ntheir funds back.\n The court held that the investors depended on the defendant for two\nreasons. First, the defendant did not have effective contractual rights against\nthe service companies. The defendant had pooled the partnership’s funds in\naccounts “owned by New Vision.” Id. at 764. And the defendant could not get\nthose funds back except “in limited circumstances, or upon termination of the\nentire contract.” Id. Second, even if the investors replaced the defendant with\na new manager, the right to demand return of investor funds belonged solely\nto the defendant, not to the partnership. Id. Notably, all of these practical\ndifficulties with removing the defendant were established at trial. Here,\nthough, the SEC merely assumes that the right to enforce the contracts with\ndrilling subcontractors sits solely with the Managers, like in Merchant Capital.\nBut no evidence shows that the investors would be unable to enforce a drilling\ncontract if Arcturus or Aschere were removed as the Manager.\n While it is true that the Managers made contractual promises to find\nsubcontractors to do the drilling, a mere contractual promise is not enough to\nfind the Managers irreplaceable. In Williamson, like here, the manager,\nGodwin Investments, drafted the relevant venture agreements and promised\n 35\n\f Case: 17-10503 Document: 00515013011 Page: 36 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\nto perform most of the significant tasks in a real estate venture, like developing\nthe land and rezoning it. But the court held that these contractual provisions\nwere not enough to satisfy the third Williamson factor—more is required to\nestablish irremovability than mere contractual relationships.\n It is true that the Property would ultimately have to be developed\n or sold, and in the interim managed, before a profit could be\n returned on it; and it is true that Godwin Investments promised to\n perform these tasks. But this alone does not establish a\n dependence on Godwin Investments so great as to deprive the\n plaintiffs of their partnership powers. The plaintiffs must allege\n that Godwin Investments was uniquely capable of such tasks or\n that the partners were incapable, within reasonable limits, of\n finding a replacement manager. Godwin Investment’s promise\n must be more than a binding contract enforceable under state law;\n it must create the sort of dependence implicit in an investment\n contract.\nWilliamson, 645 F.2d at 425 (emphasis added). In short, Aschere and Arcturus\nare not irreplaceable simply because they made contractual promises to the\ndrilling projects.\n The SEC’s second argument—the Managers were irremovable because\nthey controlled all of the investors’ funds—is unconvincing for two reasons.\nFirst, the investors never expected to recover their funds unless the oil and gas\nwells became productive. The investors did not invest in a pool of debt\ninstruments from which they could withdraw their funds, like in Merchant\nCapital. The investors sunk their capital into an exploratory drilling project\nknowing that they would not get it back unless the well became productive.\nAnd making the well productive would require further investment. They\nessentially bought the right to see if the well might be productive, and, if so, to\ninvest in completing the well. The investors could not get back their funds\nbecause they spent them on an exploratory drilling contract—one phase of the\ntotal operation—not because the Managers controlled them.\n\n\n 36\n\f Case: 17-10503 Document: 00515013011 Page: 37 Date Filed: 06/27/2019\n\n\n\n No. 17-10503\n Second, the investment here was segmented, as noted above. This case\nwould present a different question if the investors, from the outset, gave all of\ntheir funds to the Managers for every phase of the contract—drilling,\ncompletion, and subsequent operations—and then the Managers transferred\nthose funds to themselves. In that situation, the Managers might be\nirreplaceable.\n At least one case suggests that locking investors from the outset into\nturnkey contracts with the manager for each stage of the process might make\na manager irreplaceable. SEC v. Shields dealt with an almost identical drilling\nproject, but at the motion to dismiss stage. There, the court held that the SEC\nstated enough facts to satisfy the first Williamson factor. Shields, 744 F.3d at\n645. The first factor was satisfied, even though the investors had the power to\nremove the manager, because the manager hired itself as the main contractor\nfor the “turnkey drilling and completion contracts.” Id. at 647 (emphasis\nadded). Here, though, the investors were not locked into drilling and\ncompletion contracts—they plausibly were able to cut Aschere and Arcturus\nout of any completion contracts or subsequent operations.\n The Defendants put forth enough evidence to raise a genuine issue\nconcerning whether the Managers were effectively irreplaceable. We,\ntherefore, reverse the district court’s ruling on the third Williamson factor.\n III. CONCLUSION\n In sum, the Defendants raised several issues of material fact that the\ndistrict court failed to consider. For the foregoing reasons, the judgment of the\ndistrict court is REVERSED and REMANDED for trial.\n\n\n\n\n 37\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee v. ARCTURUS CORPORATION; Aschere Energy, L.L.C.; Leon Ali Parvizian, Also Known as Alex Parvizian; Robert J. Balunas; R. Thomas & Co., L.L.C.; Alfredo Gonzalez; AMG Energy, L.L.C., Defendants - Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-10503 Document: 00515013011 Page: 1 Date Filed: 06/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 17-10503 FILED\\n June 27, 2019\\n\\nSECURITIES AND EXCHANGE COMMISSION, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nARCTURUS CORPORATION; ASCHERE ENERGY, L.L.C.; LEON ALI\\nPARVIZIAN, also known as Alex Parvizian; ROBERT J. BALUNAS; R.\\nTHOMAS & CO., L.L.C.; ALFREDO GONZALEZ; AMG ENERGY, L.L.C.,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nCARL E. STEWART, Chief Judge:\\n IT IS ORDERED that our prior panel opinion, Securities and Exchange\\nCommission v. Arcturus Corporation, 912 F.3d 786 (5th Cir. 2019), is\\nWITHDRAWN and the following opinion is SUBSTITUTED therefor.\\n The Defendants—Leon Ali Parvizian, Alfredo Gonzalez, Robert J.\\nBalunus, Arcturus Corp., Aschere Energy, LLC, R. Thomas & Co., LLC, and\\nAMG Energy, LLC—sold interests in several oil and gas drilling projects to\\ninvestors. They never registered the interests as securities. The SEC called\\nfoul and filed this civil enforcement action. Because the Defendants failed to\\nregister interests in their drilling projects as securities, the SEC alleged that\\n\\f Case: 17-10503 Document: 00515013011 Page: 2 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nthey violated Sections 10(b) and 15(a) of the Securities Exchange Act\\n(“Exchange Act”), 15 U.S.C. §§ 78j(b), 78o(a), Rule 10b-5, 17 C.F.R. § 240.10b-\\n5, and Sections 5(a), 5(c), and 17(a) of the Securities Act (“Securities Act”), 15\\nU.S.C. §§ 77e(a), 77e(c), 77q(a). After roughly a year and a half of discovery,\\nboth parties filed motions for summary judgment. The district court granted\\nthe SEC’s motion, holding that the oil and gas interests qualified as securities.\\nThe Defendants now appeal. Because the Defendants raised significant issues\\nof material fact, we reverse the district court’s decision and remand for trial.\\n I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY\\n A. FACTUAL BACKGROUND\\n This case involves seven defendants, three individuals—Leon Ali\\nParvizian, Alfredo Gonzalez, and Robert J. Balunus—and four companies—\\nArcturus Corp., Aschere Energy, LLC, R. Thomas & Co., LLC, and AMG\\nEnergy, LLC. Parvizian started three of the companies—Arcturus, Aschere,\\nand AMG. He was also primarily responsible for running Arcturus and\\nAschere. Parvizian also founded AMG, but passed management on to\\nGonzalez, who has served as president since 2010. Balunus started and\\nmanaged R. Thomas.\\n The Defendants offered and sold interests in six oil and gas drilling\\nprojects—Hillock, Piwonka, Conlee, Fraley-Nelson, Chips, and Wied Field.\\nEach project had a managing venturer that supervised and managed the day-\\nto-day operations. The managing venturer also earned management fees paid\\nby the project. Together, Arcturus and Aschere were the managing venturers\\nof all six projects—Arcturus managed four, and Aschere managed two. (We\\nrefer to Arcturus and Aschere, collectively, as the “Managers.”)\\n While Arcturus and Aschere managed the drilling projects, R. Thomas\\nand AMG were primarily responsible for marketing and selling interests in the\\n\\n\\n 2\\n\\f Case: 17-10503 Document: 00515013011 Page: 3 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nprojects. Neither company controlled or operated the drilling projects beyond\\nmarketing, and neither company registered as a broker.\\n R. Thomas entered into a consulting agreement with Aschere. Under the\\nagreement, R. Thomas earned a 12% commission on each new investor it\\nintroduced to the drilling projects. 1 AMG had a similar consulting agreement\\nwith Aschere, under which it offered and sold interests in all six joint ventures\\nin exchange for $500 per week for each AMG employee and a 12% commission\\non each venture unit sold.\\n 1. The Sales Process\\n When the Defendants were selling interests in the drilling projects, they\\nsought investors through a nationwide cold-calling campaign from 2007 to\\n2011. 2 Potential investors came from a lead list that Parvizian purchased. 3\\nThe Defendants also called previous investors about the drilling projects.\\n The record indicates that the full cold-call process involved multiple\\nconversations and multiple calls. (According to Alfredo Gonzalez, a former\\nAmerest salesperson, the process “might take 5 phone calls or it might take 15\\nphone calls.”) In the initial call, the salesperson would give a “short and sweet”\\n\\n\\n 1 We refer to the joint venturers as “investors.” This is only for convenience and does\\nnot reflect a legal judgment.\\n\\n 2 The majority of the information about the cold-call process came from SEC\\ninvestigative interviews. The SEC took these interviews before filing its lawsuit in 2013.\\n\\n 3There is little evidence about the lead list in the record, but several individuals made\\nstatements about the lead list in SEC investigative interviews. Robert Balunas, a former\\nsalesperson at Amerest Securities, a company that contacted potential investors for Arcturus,\\nstated that he had prior knowledge of and relationships with some of the investors his\\ncompany sent to Arcturus. He did not know anything about the lead lists used by Parvizian.\\nHe did state, however, that he only made offers to accredited investors.\\n\\n According to another person, the list might have included only accredited investors.\\nHe also suggested that salespeople called both new and current clients. Parvizian stated that\\nAMG Energy may have provided him with the lead list, but he was unsure.\\n\\n 3\\n\\f Case: 17-10503 Document: 00515013011 Page: 4 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nstatement, introducing himself and noting that he works for “a firm involved\\nin [sic] oil and gas exploration.” The salesperson would then ask if the\\nprospective investor had experience in oil and gas investing. If the investor\\ndid, the salesperson would ask if the prospective investor was interested in\\ninformation about a potential investment opportunity. If so, the salesperson\\nwould transfer the prospective investor to a “registered broker.” 4 Or if the\\nsalesperson was also a registered broker, then he would continue speaking\\nwith the prospective investor. If the prospective investor expressed further\\ninterest to the broker, the broker would have a receptionist send out\\ninformation.\\n Initially, Arcturus would send a one-page introduction letter, giving\\nbasic information about the company and ways to seek out additional\\ninformation. 5 This letter did not include any other materials. This process\\nwas designed to form a “substantive relationship” with the new client. If the\\nnew client expressed interest after additional calls, then Arcturus would send\\nout a group of signing documents. The Defendants distributed five primary\\nsigning documents: (1) a Confidential Information Memorandum (“CIM”),\\nwhich gave a detailed overview of the drilling project; (2) a copy of the Joint\\nVenture Agreement (“JVA”), which laid out the contractual rights and duties\\nof each party; (3) a screening questionnaire, which asked various questions\\nabout the investor’s education, investing history, and experience; (4) a Private\\n\\n\\n\\n 4Brokers could not communicate with potential investors in any other way. For\\nexample, they did not have access to email.\\n\\n 5 Brian William Bull, the former chief compliance officer for Amerest Securities,\\nsuggested that existing clients might not receive this introduction letter. It is unclear how\\nmany existing clients Arcturus had. Bull did state, however, that “many” investors “had been\\nclients for years.” It is unclear whether these investors were clients of Amerest, Arcturus, or\\nboth. But at least some of the eventual investors had been Parvizian’s clients for years.\\n\\n 4\\n\\f Case: 17-10503 Document: 00515013011 Page: 5 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nPlacement Memorandum (“PPM”), which was an advertising brochure for each\\ndrilling project with geological information, pricing, and potential returns; and\\n(5) a subscription agreement, which served as the investor’s application. After\\nsending these documents, a broker would make a follow-up call to ensure the\\nmaterials arrived and were all in order.\\n If the prospective investor decided to invest, then he would fill out\\n“paperwork that was included” in the materials, including the questionnaire.\\nArcturus would review the questionnaire to ensure that (1) the investor was\\naccredited and (2) the investment was suitable for the particular investor. This\\nreview included looking at the investor’s net worth and employment.\\nAccording to Balunas, the Defendants would also check on the potential\\ninvestor’s experience with oil and gas investing.\\n After reviewing these documents, the Defendants would sometimes call\\nprospective investors for additional information, though this would happen\\nless often for “repeat clients.” The Defendants would then request that each\\nprospective investor reverify their suitability information. Bull also suggested\\nthat they would seek other updates on each investor’s suitability from “time-\\nto-time.” If the investor did not qualify as an accredited investor, the\\nDefendants would reject the investor. 6 Both Bull and Billy Cooper, a former\\nArcturus employee, stated that the Defendants would reject non-accredited\\ninvestors, but Bull could not remember any specific rejections. Cooper also\\nbelieved that some of the projects may have had non-accredited investors.\\nParvizian disagreed and maintained that every investor was accredited.\\n\\n\\n\\n\\n 6 Even before rejecting an investor based on their questionnaire responses, Bull\\nindicated that they would sometimes reject prospective investors before sending out the\\nquestionnaire if it seemed like the investment would not be suitable.\\n 5\\n\\f Case: 17-10503 Document: 00515013011 Page: 6 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n 2. The Investors\\n Spread over the six projects, there were over 340 investors. 7 The record\\ndoes not contain much information about these investors. The record only\\ncontains direct evidence about the qualifications of roughly 25 investors,\\nleaving nearly 315 unaccounted for. But of the 25 investors about whom we\\nhave information, many had experience in the oil and gas field, direct\\nexperience with the Defendants, or both. One investor has prior experience\\nwith Orbit Energy. Another stated that he has “an engineering background”\\nand “participated in other energy ventures with Escondido and Patriot\\nEnergy.” Another stated that he has “done 83 of these projects over the last\\nten years.” Another stated that he has “extensive experience in investing in\\ndomestic energy and often defer[s] to the advice of [his] energy advisors and\\npetroleum engineers.” Another has “past experience in oil and gas with various\\npartial investment projects.” Another has “past experience in oil and gas with\\nCocoal and British Petroleum.” Another has “previous oil & gas experience\\nwith OG-7 Jay Pisquro.” Another “previously invested in three different oil\\ndrilling and exploration projects.” Another “previously invested in at least\\nseven different oil and gas drilling, exploration, and/or production projects,”\\nsome of which “were joint ventures which, like Arcturus, required active\\nparticipation and voting.” Another invested in two other drilling joint\\n\\n\\n 7The number of investors is uncertain. For example, one document, prepared by the\\nSEC, pegs the number at 380. The Defendants counted 341 investors. The Defendants,\\nthough, counted investors more than once if they invested in more than one joint venture.\\nFor example, if one investor took part in four joint ventures, he was counted four times. See\\nAnother document in the record counts 349 investors. That document, however, lists many\\ninvestors more than once.\\n\\n The parties also disagree on the number of investors per venture. According to the\\nDefendants’ count, there were 94 investors in Hillock, 61 in Piwonka, 59 in Conlee, 4 in\\nFraley-Nelson, 35 in Chips, and 88 in Wied Field. According to the SEC, there were 108\\ninvestors in Hillock, 57 in Piwonka, 71 in Conlee, 4 in Fraley-Nelson, 35 in Chips, and 105 in\\nWied Field.\\n 6\\n\\f Case: 17-10503 Document: 00515013011 Page: 7 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nventures. And another has “past experience in oil and gas with Choice\\nExploration.”\\n Besides those with oil and gas experience, at least five other investors\\nhave prior experience with the Defendants. Other investors had more general\\nbusiness experience. For example, one investor is a senior vice president at\\nCapitol One and manages an operating budget of $500,000,000. Another has\\ninvested millions in publicly traded stocks and “numerous” joint venture\\ninvestments.\\n Beyond these investors, the record contained information about five\\ninvestors who seemed to lack specialized experience.\\n Outside of this direct information about investors, the Defendants made\\na few global statements about the investors. Parvizian stated that every\\ninvestor was accredited. Balunas discussed the investors at length. He\\nrepeatedly emphasized that the investors were “sophisticated people.”\\nBalunas stated that many investors “had their CPAs or attorneys call” the\\nDefendants. And others personally visited the well or spoke with the drilling\\noperator or onsite drilling engineers. Bull assumed that some investors were\\nnew to oil and gas investment. But Cooper stated that “most of the people [he]\\nspoke to [had] invested in oil and gas before.”\\n 3. The Drilling Projects\\n The drilling projects were split into multiple stages. First, in the\\ncapitalization stage, the Defendants sought investors for each individual\\ndrilling project. According to the signing documents, investors collectively\\nwould pay a fixed price for a “Turnkey Drilling Contract.” The Manager of the\\ndrilling project would then use those funds to purchase a working interest in a\\nprospect well, which would entitle it to drill, test, and complete the well. The\\nworking interest also entitled the project to a share of the well’s net revenue.\\n\\n\\n 7\\n\\f Case: 17-10503 Document: 00515013011 Page: 8 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n After capitalization, the drilling project would begin initial operations.\\nInitial operations included the drilling and testing of the prospect well. The\\nManager of each drilling project was responsible for the initial operations.\\nAschere, for example, was responsible for managing the initial operations of\\nthe Conlee well. To complete the initial operations, the Manager would take\\nthe investors’ funds and subcontract with a drilling operator who would drill\\nand test the well. The operator for each project was identified in the\\ncorresponding CIM.\\n After drilling and testing the well, the Managers would recommend\\nwhether or not to complete the well. 8 The investors would then vote on the\\nrecommendation. If the investors voted in favor, then they would all be\\nrequired to pay a completion assessment, which covered the cost of entering\\ninto a “Turnkey Completion Contract.” If an investor did not pay the\\ncompletion assessment, he abandoned his interest in the well, did not pay any\\nfurther assessments, and had no right to any revenue.\\n After completion, the investors could elect, at the Manager’s\\nrecommendation, to engage in special operations. Special operations could\\ninclude drilling deeper, fracking, or completing additional zones in the well.\\nThese operations were subject to special assessments. The investors could also\\nchoose to engage in additional operations, which were subject to additional\\nassessments.\\n B. PROCEDURAL HISTORY\\n In December 2013, the SEC filed this civil enforcement action, alleging\\nthat the Defendants violated Section 5(a) and (c) of the Securities Act and\\nSection 17(a) of the Exchange Act. The SEC argued that interests in these\\n\\n\\n 8 “In simple terms, [completing a well means] the gas well moves from construction to\\nextraction phases.” JAMES T. O’REILLY, THE LAW OF FRACKING § 6:9 (2018). This process\\nusually includes placing equipment into the well and drawing out oil or gas.\\n 8\\n\\f Case: 17-10503 Document: 00515013011 Page: 9 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\ndrilling projects qualified as securities, and the Defendants tried to avoid\\nfederal securities laws by calling the projects joint ventures and labeling the\\ninvestors as partners. The Defendants argued that the projects were joint\\nventures because the investors had powers, rights, and management\\nobligations. Both parties filed motions for summary judgment, and the district\\ncourt granted the SEC’s motion.\\n The district court held that interests in the drilling projects were sold as\\nsecurities pursuant to SEC v. W.J. Howey Co., 328 U.S. 293 (1946). The parties\\nagreed that only one factor from Howey was in dispute—whether the investors\\nexpected to profit “solely from the efforts of” the Defendants. This factor is\\ngoverned by Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which sets out\\nthree factors for determining whether investors expect to profit solely from\\nthird-party efforts. The drilling interests qualified as securities for three main\\nreasons, which correspond to the three factors in Williamson. First, the district\\ncourt held that the investors had no real power to control the venture. Despite\\nhaving some powers in the JVAs, the court held that these powers were illusory\\nbecause the investors had no way of contacting each other, and the Defendants\\nwould not provide contact information. Without the ability to communicate,\\nthey could not amass the votes they needed to control the drilling projects.\\n Second, the court held that the investors were inexperienced and lacked\\nexpertise in the oil and gas field. The investors lacked experience, according\\nto the district court, because the Defendants marketed their drilling interests\\nthrough a broad cold-calling campaign. The investors were also forced to rely\\non the Defendants to acquire all of their information.\\n Third, the court held that the investors were reliant on the Defendants.\\nThe Defendants controlled all of the investors’ assets, and a replacement\\nmanager could not access those assets—only the Defendants could. The\\ninvestors also relied on the Defendants for all of their information.\\n 9\\n\\f Case: 17-10503 Document: 00515013011 Page: 10 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n II. DISCUSSION\\n This court reviews a district court’s grant of summary judgment de novo,\\nusing the same legal standard as the district court. Turner v. Baylor\\nRichardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Summary judgment\\nis appropriate where there is no genuine issue of material fact and the parties\\nare entitled to judgment as a matter of law. Id. All reasonable inferences must\\nbe drawn in favor of the nonmovant, but “a party cannot defeat summary\\njudgment with conclusory allegations, unsubstantiated assertions, or only a\\nscintilla of evidence.” Id. (internal quotation marks omitted).\\n Under Section 5 of the Securities Act, it is “unlawful for any person,\\ndirectly or indirectly” to use interstate commerce to offer to sell “any security”\\nunless the person has filed a “registration statement” for the security. 9 15\\nU.S.C. § 77e(c). The Securities Act broadly defines the term security to include\\na long list of financial instruments, including “investment contracts,” the type\\nof security at issue here. See 15 U.S.C. § 77b(a)(1). While Congress defined\\nthe term “security,” it left it to the courts to define the term “investment\\ncontract.” In Howey, the Supreme Court did exactly that and developed a\\n“flexible” test for determining whether an investment contract qualifies as a\\nsecurity:\\n [A]n investment contract for purposes of the Securities Act means\\n a contract, transaction or scheme whereby a person invests his\\n money in a common enterprise and is led to expect profits solely\\n from the efforts of the promoter or a third party . . . .\\nHowey, 328 U.S. at 298–99. Distilled to its elements, an investment contract\\nqualifies as a security if it meets three requirements: “(1) an investment of\\nmoney; (2) in a common enterprise; and (3) on an expectation of profits to be\\n\\n\\n\\n 9 It is undisputed that the Defendants never filed a registration statement for the\\ninterests in their drilling projects.\\n 10\\n\\f Case: 17-10503 Document: 00515013011 Page: 11 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nderived solely from the efforts of individuals other than the investor.”\\nWilliamson, 645 F.2d at 417–18 (citing SEC v. Koskot Int’l, Inc., 497 F.2d 473\\n(5th Cir. 1974)).\\n When applying this test, courts should disregard “legal formalisms” and,\\ninstead, focus on the substance of the deal—“the economics of the transaction\\nunder investigation.” Reves v. Ernst & Young, 494 U.S. 56, 61 (1990). Even\\nthough certain contracts might “superficially resemble private commercial\\ntransactions” and lack “the formal attributes of a security,” they still can\\nqualify as securities. Youmans v. Simon, 791 F.2d 341, 345 (5th Cir. 1986)\\n Here, the parties do not contest that the drilling interests met the first\\ntwo Howey factors. 10 The primary issue is whether the drilling interests\\nsatisfied the third factor—whether the investors expected to profit “solely from\\nthe efforts of” the Managers.\\n When determining whether investors expect to rely “solely on the efforts\\nof others,” courts construe the term “solely” “in a flexible manner, not in a\\nliteral sense.” Youmans, 791 F.2d at 345. And for good reason. If courts\\ninterpreted “solely” in a literal way, a party could “evade liability” merely by\\nparceling “out [minor] duties to investors.” Id. at 345–46. To prevent this\\npossibility, courts find the third Howey factor met if “the efforts made by those\\nother than the investor are the undeniably significant ones, those essential\\nmanagerial efforts which affect the failure or success of the enterprise.”\\nWilliamson, 645 F.2d at 418. Even though an investor might retain\\n“substantial theoretical control,” courts look beyond formalities and examine\\n\\n\\n\\n\\n 10 Gonzalez states, in one sentence, that none of the Howey factors were satisfied, but\\nhis brief is dedicated solely to the third factor. Because he did not provide any support for\\nhis argument, he waived it. United States v. Upton, 91 F.3d 677, 684 n.10 (5th Cir. 1996)\\n(“[C]laims made without citation to authority or references to the record are considered\\nabandoned on appeal.”).\\n 11\\n\\f Case: 17-10503 Document: 00515013011 Page: 12 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nwhether investors, in fact, can and do utilize their powers. Affco Invs. 2001,\\nLLC v. Proskauer Rose, L.L.P., 625 F.3d 185, 190 (5th Cir. 2010).\\n Here, the court must apply these general principles to a partnership. 11\\nInterests in a partnership can satisfy the third Howey factor and qualify as an\\n“investment contract.” But not all partnerships qualify. For example, partners\\nin a general partnership can guard “their own interests” with their “inherent\\npowers” and do not need protection from securities laws—they can “act on\\nbehalf of the partnership”; “bind their partners by their actions”; “dissolve the\\npartnership”; and “are personally liable for all liabilities of the partnership.”\\nYoumans, 791 F.2d at 346. General partners are, in short, “entrepreneurs, not\\ninvestors.” Id. Accordingly, general partnership interests typically do not\\nqualify as securities. Id. And a litigant trying to prove otherwise must\\novercome the “strong presumption” that “a general partnership . . . is not a\\nsecurity.” Nunez v. Robin, 415 F. App’x 586, 589 (5th Cir. 2011) (per curiam)\\n(unpublished) (quoting Youmans, 791 F.2d at 346); see also Youmans, 791 F.2d\\nat 346 (“A party seeking to prove the contrary must bear a heavy burden of\\nproof.”).\\n Limited partners are different. Unlike general partners, limited\\npartners lack significant powers—their “liability for the partnership is limited\\nto the amount of their investment”; “[t]hey cannot ordinarily dissolve the\\npartnership . . . [or] bind other partners”; and “they have little or no authority\\nto take an active part in the management of the partnership.” Youmans, 791\\nF.2d at 346. Without any significant powers, a limited partner is like “a\\nstockholder in a corporation.” Id. As a result, “limited partnership interests\\n\\n\\n\\n 11 This court applies the same analysis to partnerships and joint ventures. Youmans,\\n791 F.2d at 346 n.2 (“Our discussion of partnerships applies with equal force to joint ventures\\nsince this kind of business investment device is the same for purposes of the federal securities\\nlaws.”).\\n 12\\n\\f Case: 17-10503 Document: 00515013011 Page: 13 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nmay be considered a security.” Id. (citing Sibel v. Scott, 725 F.2d 995, 998 (5th\\nCir.), cert. denied, 467 U.S. 1242 (1984)).\\n While we typically employ a “strong presumption” that “a general\\npartnership . . . is not a security,” Nunez, 415 F. App’x at 589 (quoting\\nYoumans, 791 F.2d at 346), we have noted that even general partners can lack\\nmanagerial powers. Labeling a partnership as general or limited does not\\nalways reflect what really matters: the division of power among the partners.\\nWhile general partners usually have an array of ways to influence the\\npartnership, partnership documents or other barriers sometimes curtail their\\npower. Under these circumstances, even a general partnership interest can\\nqualify as a security.\\n To guide courts in applying the third Howey factor to these in-between\\nsituations, this court set forth the three Williamson factors—the primary\\nsource of contention here. These factors flesh out situations where investors\\ndepend on a third-party manager for their investment’s success, and each\\nfactor is sufficient to satisfy the third Howey factor. Under the Williamson\\nfactors, a partner is dependent solely on the efforts of a third-party manager\\nwhen:\\n (1) an agreement among the parties leaves so little power in the\\n hands of the partner or venturer that the arrangement in fact\\n distributes power as would a limited partnership; or (2) the\\n partner or venturer is so inexperienced and unknowledgeable in\\n business affairs that he is incapable of intelligently exercising his\\n partnership or venture powers; or (3) the partner or venturer is so\\n dependent on some unique entrepreneurial or managerial ability\\n of the promoter or manager that he cannot replace the manager of\\n the enterprise or otherwise exercise meaningful partnership or\\n venture powers.\\n\\n\\n\\n\\n 13\\n\\f Case: 17-10503 Document: 00515013011 Page: 14 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nWilliamson, 645 F.2d at 424. 12 Courts, however, are not limited to these three\\nfactors—other factors could “also give rise to such a dependence on the\\npromoter or manager that the exercise of partnership powers would be\\neffectively precluded.” Id. at 424 n.15. But regardless of which factor is at\\nissue, a party can only prove one of the Williamson factors by looking to the\\nunique facts of the arrangement at issue. Differently put, a party faces a\\n“factual burden” when proving one of the Williamson factors. Id. at 425.\\n A. THE FIRST WILLIAMSON FACTOR\\n The first Williamson factor is whether the drilling projects left the\\ninvestors so little power “that the arrangement in fact distributes power as\\nwould a limited partnership.” Id. at 424. In determining whether an\\narrangement deprives investors of power, courts look to two sources of\\nevidence. First, courts look to the legal documents setting up the arrangement\\nto see if investors were given formal powers. See, e.g., id. (looking to the\\n“partnership agreement” to see if partners were given power). Second, courts\\nexamine how the arrangement functioned in practice, which includes looking\\nfor barriers to investors using their powers. See, e.g., Nunez, 415 F. App’x at\\n590 (looking to the fact that an investor exercised power over the partnership’s\\nfinances); Long v. Shultz Cattle Co., 881 F.2d 129, 134 (5th Cir. 1989) (crediting\\nthe jury’s conclusion that investors, in practice, followed the manager’s\\n\\n\\n\\n\\n 12 A number of other circuits have adopted the Williamson factors as a way to analyze\\nthe third Howey factor. See, e.g., SEC v. Shields, 744 F.3d 633, 644 (10th Cir. 2014) (adopting\\nthe Williamson factors); United States v. Leonard, 529 F.3d 83, 90–91 (2d Cir. 2008) (same);\\nSEC v. Merch. Capital, LLC, 483 F.3d 747, 755–56 (11th Cir. 2007) (same); Stone v. Kirk, 8\\nF.3d 1079, 1086 (6th Cir. 1993) (same); Koch v. Hankins, 928 F.2d 1471, 1477–81 (9th Cir.\\n1991) (same); Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 241\\n(4th Cir. 1988) (same).\\n\\n 14\\n\\f Case: 17-10503 Document: 00515013011 Page: 15 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nrecommendations). How the arrangement functioned is typically the most\\nimportant indication of whether investors had power. 13\\n Here, this factor turns on six critical disputes—(1) the Managers’ formal\\npowers as compared to the investors’ formal powers; (2) whether the investors\\nexercised their formal powers; (3) the voting structure of the drilling projects;\\n(4) information available to the investors; (5) communication among the\\ninvestors; and (6) the number of investors. All these factors go towards\\ndetermining whether the investors had power to control the drilling projects.\\n 1. The Managers’ and Investors’ Formal Powers\\n Arcturus and Aschere did possess a significant amount of power. First,\\nand most significantly, the JVAs make clear that they had the power to control\\n“the day-to-day Operations” of the drilling projects. The JVAs defined\\n“Operations” broadly as any activity related to acquiring, drilling, testing,\\ncompleting, equipping, or otherwise working on the prospect well. The ability\\nto control the daily “Operations” also came with “full and plenary power” to,\\namong other things, (1) retain operators to drill and complete wells, (2) conduct\\n\\n\\n 13 Gonzalez dedicates much of his brief to arguing that the district court erred by\\nlooking to post-investment conduct when it was determining the expectations of the parties\\nat the time they entered the drilling investment contracts. This argument is unpersuasive.\\nFirst, a recent opinion by this court explicitly held that post-investment conduct is relevant\\nto determining the expectations of the parties at the time they entered the contract. See SEC\\nv. Sethi, No. 17-41022, 2018 WL 6322153, at *3 n.3 (5th Cir. Dec. 4, 2018). Second, other\\ncircuits allow courts to look at “post-investment conduct.” Shields, 744 F.3d at 646; see also\\nMerch. Capital, 483 F.3d at 760; Koch, 928 F.2d at 1478 (looking to the “practical possibility\\nof the investors exercising the powers they possessed pursuant to the partnership\\nagreements.”). Third, even before the explicit holding in Sethi, this court, in nearly every\\ncase, did in fact analyze post-investment activity. See, e.g., Nunez, 415 F. App’x at 590\\n(looking to the fact that the investor exercised power over the partnership’s finances); Long,\\n881 F.2d at 134 (crediting the jury’s conclusion that investors followed the manager’s\\nrecommendations); Youmans, 791 F.2d at 347 (directing the trial court on remand to further\\ndevelop the “practical application” of the relevant contract provisions). Fourth, Gonzalez\\ncites no cases in support of his position—all his cited cases either (1) hold exactly the opposite\\nof what he argues, or (2) are distinguishable because they address situations where investors\\ndelegated power to a manager after forming the initial contract. See, e.g., Holden v.\\nHagopian, 978 F.2d 1115, 1119 n.6 (9th Cir. 1992).\\n 15\\n\\f Case: 17-10503 Document: 00515013011 Page: 16 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nsurveys, (3) execute “any and all contracts and agreements,” (4) make “all”\\nelections or decisions and “bind the Joint Venture,” (5) make payments with\\nfunds belonging to the projects, (6) execute operating agreements, and (7)\\nexecute powers of attorney. Second, when dealing with third parties, the\\nManagers had the power to execute contracts that contained “such provisions\\nas the Managing Venturer deems expedient.”\\n Third, the Managers had the power of the purse and could “charge the\\nJoint Venture . . . all reasonable expenses incurred by the Managing Venturer\\nin the operation of the Joint Venture.” Fourth, these powers were exclusive—\\naccording to the JVA, no investor besides the Manager could “act on behalf of,\\nsign or bind the Joint Venture with respect to Operations of the Joint Venture.”\\nFinally, the Managers also had “sole and absolute discretion” to interpret\\nambiguous or unclear provisions.\\n While the Managers had significant power, the investors, at least\\nformally, were not without countervailing powers. Most importantly, the\\ninvestors had the power to remove Arcturus and Aschere as managers with a\\n60% vote—a power this court has called “an essential attribute of a general\\npartner’s . . . authority.” Youmans, 791 F.2d at 347. This court has also held\\nthat similar removal provisions do not divest investors of their power.\\nWilliamson, 645 F.2d at 409, 424 (suggesting that 60% and 70% removal\\nrequirements did not shield the manager from removal); Youmans, 791 F.2d at\\n346-47 (holding that the investors had power over the scheme, in part because\\nof a majority vote removal provision); see also Holden, 978 F.2d at 1120 (finding\\nno investment contract where manager could be removed with simple majority\\nvote). Nor is the 60% requirement as burdensome as removal provisions that\\nother courts have addressed. See, e.g., Merch. Capital, 483 F.3d at 757-58\\n(holding that provisions requiring unanimous, for-cause removal made\\nmanager “effectively unremovable”).\\n 16\\n\\f Case: 17-10503 Document: 00515013011 Page: 17 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n The investors also had authority over almost all of the Managers’ powers.\\nFor example, the JVAs clarify that the “Joint Venture and all of its affairs,\\nproperty, and Operations shall be managed and controlled by a majority of the\\nVenturers.” The JVA also qualifies the Manager’s power by giving the\\ninvestors veto power—the seven “Operations” powers outlined above are all\\nsubject to “the affirmative Vote of the Venturers.” If this provision was\\nfollowed in practice, then the Manager could not bind the drilling project\\nwithout the investors voting to affirm. The investors also had the power to\\ndevelop rules and procedures governing meetings and voting, demand a\\nmeeting, amend the JVA, receive financial information and information about\\nthird-party transactions, and inspect the project’s books. The signing\\ndocuments given to the investors also make clear that the investors will be\\nrequired to take an active role in governing the drilling projects. They also\\nclearly state that the venture is not a security, putting the investors “on notice”\\nthat “federal securities acts” will not protect them. Williamson, 645 F.2d at\\n422. Further, if an investor did not send money for an assessment, it was\\ninterpreted as a “no” vote, so the baseline voting rules did not necessarily favor\\nthe Managers, unlike other cases. See Merch. Capital, 483 F.3d at 760 (“[T]he\\nvoting process was tilted in [the defendant’s] favor from the very start. The\\npartnership agreement provided that unreturned and unvoted ballots were\\nvoted in favor of management.”).\\n Added together, these provisions, at least formally, give the investors\\nsignificant control over the drilling projects. Indeed, nearly all of the\\nManagers’ powers are subject to an affirmative vote by the investors. Other\\ncases have held that investors with similar powers possessed control over the\\npartnership. See, e.g., Koch, 928 F.2d at 1478–79 (holding that partners had\\nat least formal power where “[a]dditional assessments of capital must be\\napproved by 75 percent of the partnership units; a majority of the partnership\\n 17\\n\\f Case: 17-10503 Document: 00515013011 Page: 18 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nunits can remove any person from a management position; decisions regarding\\nthe management and control of the business must be made by a majority vote”).\\n 2. The Investors’ Powers in Practice\\n But, as the case law makes clear, formal powers are not dispositive—\\ncourts must determine whether investors can and do exercise those powers.\\nSee, e.g., Youmans, 791 F.2d at 347 (directing the trial court on remand to\\nfurther develop the “practical application” of the relevant contract provisions).\\nHere, the record suggests that the investors utilized their powers. The record\\nshows votes taken on a variety of actions, such as increasing production units;\\ncompletion; workover and recompletion; new projects; and dissolution. The\\nrecord also contains communications from the Managers requesting a vote on\\na subsequent cleanout proposal. Fifteen investors also submitted affidavits\\ndeclaring that they had the power to, and did in fact, vote on a variety of\\ndecisions. And the record does not show that Arcturus or Aschere took any\\nsignificant actions without the investors’ prior approval. The fact that the\\ninvestors voted and took actions to manage the drilling projects makes this\\ncase different than others where the district court appropriately granted\\nsummary judgment. See Sethi, 2018 WL 6322153, at *4 (affirming the district\\ncourt’s grant of summary judgment where “[t]he investors never held a\\nmeeting and did not vote on any matter.”).\\n 3. The Projects’ Voting Structure\\n The SEC and the district court placed great weight on the contract\\nprovisions covering completion assessments and additional assessments.\\nWhen faced with the Managers’ recommendation to complete a well and enter\\na turnkey completion contract, the investors can vote for or against completion.\\nIf the investors vote to complete the well, then the project charges them a\\ncompletion assessment of up to $100,000. If an investor fails to pay the\\nassessment, then he is considered to have abandoned his interest. For\\n 18\\n\\f Case: 17-10503 Document: 00515013011 Page: 19 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nadditional assessments, if the investors vote to approve additional work, each\\ninvestor has one of three choices. Investors must either pay the assessment,\\nabandon their interest, or pay a penalty if they pay the assessment late. An\\ninvestor who pays late becomes a non-participating investor and can be\\nreinstated only by paying the penalty. This arrangement, according to the\\nSEC, presents investors with a Hobson’s choice—follow the manager’s\\nrecommendation or you are out. 14\\n These provisions, however, do not operate like the SEC suggests. To help\\nclarify, these provisions must be placed in the context of an inherently\\nspeculative investment like drilling. One law review article describes the\\ninitial payment in these contracts as the cost of “being allowed to participate”\\nuntil the point when the investors choose whether to complete the well. R.K.\\nPezold & Danny Richey, The “Industry Deal” Among Oil and Gas Companies\\nand the Federal Securities Acts, 16 Tex. Tech L. Rev. 827, 833 (1985)\\n[hereinafter, Industry Deal]. Splitting the process into drilling and completion\\nmakes sense because it allows investors to get a glimpse inside the well without\\npaying for completion upfront. Only later, after gathering more information\\nfrom the drilling process, do investors choose if they want to complete the well.\\nThis split between the initial drilling and completion effectively gives investors\\nan additional chance to cut their losses. The signing papers follow this general\\nsplit and make clear that investors are only entering a turnkey drilling\\ncontract—completion, which is not mandatory, requires additional investment.\\n\\n\\n\\n\\n 14 The SEC argues that investors who oppose the Manager’s recommendation are\\neither charged a penalty or kicked out of the project. But that assertion is not true. We\\ncannot find anywhere in the offering documents where an investor is kicked out for voting\\nagainst the Manager’s recommendation. The only reason an investor is kicked out is for\\nfailing to pay his proportionate share of completion costs after an affirmative vote has been\\ntaken.\\n 19\\n\\f Case: 17-10503 Document: 00515013011 Page: 20 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Returning to the investors’ choices with this basic background, the\\narrangement does not strip the investors of power. If an investor votes for\\ncompletion, he does not lose power because he must pay for completion costs.\\nIf the investor thinks the well is a lost cause, then allowing him to abandon his\\ninterest also does not strip him of power. The entire project is presumptively\\norganized around one well—if the investor thinks it is not going to be profitable\\nafter drilling, then he likely would want out of the project without wasting\\nadditional money. 15 These investors are free to “stand aside, incur no further\\ncosts, and allow the ‘consenting owners’ to proceed with any completion\\nactivities desired.” Industry Deal, at 833 n.27.\\n When it comes to subsequent operations, if an investor is unclear what\\nto do, he can avoid paying. The investor then becomes a non-participating\\ninvestor. But the investor’s initial silence is not permanent—the investor can\\npay a “pre-agreed and substantial economic penalty” and become a\\nparticipating investor again. Industry Deal, at 834 n.27. This penalty also\\nmakes sense. When an investor fails to pay operation costs, other participating\\ninvestors are forced to take up the financial slack, increasing their risk. The\\npenalty serves to compensate the “risk-taking” investors who bore the added\\nrisk. Industry Deal, at 834 n.27. While the SEC argues that these\\nconsequences eliminate any voting power, they can be seen in a more positive\\nlight as preventing free-riding.\\n The case law, while not oil-and-gas specific, further supports this\\nintuition. In Williamson, this court did not attach any significance to a similar\\nvoting plan. 645 F.2d at 409. The voting plan there required the manager to\\npresent the investors with “any proposal for development.” Id. at 409. The\\n\\n\\n 15An email from at least one investor confirms this intuition. In the email, the\\ninvestor, angry at the project’s failure, says that he is “far more comfortable not losing more\\nmoney than . . . putting more into this losing project.”\\n 20\\n\\f Case: 17-10503 Document: 00515013011 Page: 21 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\ninvestors could approve the proposal by a “vote of the holders of 60% or 70% in\\njoint venture interests.” Id. Importantly, if the investors accepted the\\nproposal, the investors who approved it were “obligated to purchase the\\ninterests of those who [did] not.” Id. Structurally, the consequences were like\\nthose here—vote yes, pay more money; vote no, you are out. 16 If such a\\nstructure was not a Hobson’s choice there, it is unclear why it would be here.\\n 4. The Source of Investors’ Information\\n The SEC argues, and the district court held, that the investors’ powers\\nwere weak because they relied on the Managers for information about the\\ndrilling projects. 17 Some case law does suggest that investors are powerless\\nwhen all of their pertinent information comes from the managers. 18 But mere\\ncontrol over information does not, on its own, strip investors of their power to\\nvote. The source of information only matters when the investors do not receive\\nenough information to make an educated decision. See Sethi, 2018 WL\\n6322153, at *4 (affirming the district court’s grant of summary judgment\\nbecause the defendant “gave the investors little to no information”); Merch.\\nCapital, 483 F.3d at 759 (“[The defendant] controlled how much information\\n\\n\\n 16The main difference was that dissenters in Williamson got their investments back,\\nbut that has more to do with riskiness than control of the venture.\\n\\n 17 Control of information can go to the first or second Williamson factors. See Long,\\n881 F.2d at 137. It goes to the first factor when the party in control of information prevents\\notherwise competent investors from exercising control over the partnership or venture. For\\nexample, the controlling party can provide only a small amount of information that supports\\nits position. See Merch. Capital, 483 F.3d at 759. Control of information goes to the second\\nfactor when the investors are not sophisticated enough to understand the information they\\nare given. See Long, 881 F.2d at 135–36.\\n\\n 18 The SEC relies on Long for this point, but this reliance is misplaced. Long was\\nprimarily about whether investors can acquire experience and knowledge from the\\ndefendant—the second Williamson factor—not the source of the information. When it came\\nto the first Williamson factor, the court in Long relied on the jury’s conclusion that the\\ninvestors relied exclusively on the defendant’s recommendations, as established by a\\ndocumented pattern of voting. See Long, 881 F.3d at 134.\\n 21\\n\\f Case: 17-10503 Document: 00515013011 Page: 22 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nappeared in the ballots, and did not submit sufficient information for the\\npartners to be able to make meaningful decisions to approve or disapprove debt\\npurchases.”). In Merchant Capital, for example, the Eleventh Circuit held that\\ninvestors could not effectively exercise their voting rights because the manager\\nonly gave investors three pieces of information, which was not “sufficient\\ninformation for the partners to be able to make meaningful decisions.” Id. at\\n759. This conclusion was established at trial by expert testimony. Id.\\n This case is not like Merchant Capital. The record suggests that\\ninvestors had numerous sources of information. The Managers sent email\\nupdates to the investors on numerous occasions. Some emails contained day-\\nby-day updates. Other emails in the record had attachments of\\n“comprehensive digital daily drilling reports.” Another email references a 24-\\nhour “video surveillance” system being installed for remote access of visual\\nmanagement of drilling operations.” Some emails in the record welcomed\\ninvestors to come visit the drilling site. And fifteen different investors\\ncorroborated this record evidence with affidavits, declaring that they stayed\\nwell-informed through “persistent status updates” in the form of “geologic data,\\nwell data, proposed oil and gas contracts, . . . video surveillance and other forms\\nof live monitoring.” All this information goes far beyond the three pieces of\\ninformation provided to investors in Merchant Capital. More importantly, this\\ncourt does not have the “trial testimony” of numerous witnesses and experts to\\ndetermine, as a matter of law, that the investors had enough information to\\n“make an informed decision.” Merch. Capital, 483 F.3d at 758.\\n The SEC also seems to suggest that the investors lacked control because\\nthe Managers picked the experts who were providing much of the technical\\ndata. But it is unclear whether this choice mattered. It is possible, for\\nexample, that the Managers were simply conduits for information—the\\nconsultants sent the Managers information about the well, which the\\n 22\\n\\f Case: 17-10503 Document: 00515013011 Page: 23 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nManagers then passed to the investors. As noted above, the Managers\\nsometimes passed along the raw data they received from the operators. If the\\ninvestors and Managers had access to the exact same data, the investors could\\ndraw their own conclusions about the prospect wells. And the SEC does not\\npoint to any facts showing that the consultants presented biased information.\\nNor does the SEC point to any facts showing that the Managers misled the\\ninvestors with false or altered information.\\n 5. Investor Communications\\n The SEC argues that the investors’ powers were useless because they\\ncould not contact each other and coordinate their votes. The SEC also argues\\nthat the Defendants would not release investor contact information. The\\nrecord lends some support to these contentions. 19 According to one investor,\\nDouglas Traver, Parvizian withheld investor information at least once. Four\\nof the six JVAs also protected investor contact information as “confidential and\\na trade secret of the Managing Venturer.” For these four projects, no investor\\nwas entitled to learn the identity of other investors. And when the Managers\\nsent emails to all of the investors on a given project, they generally blind-copied\\nthe recipients, preventing them from easily contacting other investors. Most\\ntroublingly, one investor, Richard Ullrey, declared that Parvizian threatened\\nlegal action against him for contacting other investors.\\n The case law adds force to these arguments. Courts have previously held\\nthat investors might lack real power if they are unacquainted and unable to\\n\\n\\n\\n\\n 19 The district court placed weight on the fact that the investors were “located across\\nthe United States.” But this factor originated with a Supreme Court opinion from 1946, and\\nit is antiquated today. Howey, 328 U.S. at 299. The investors, if they had contact information\\nfor each other, could communicate using telephone, email, text messages, or video calls.\\nWhile physical proximity still deserves some weight—it might, for example, play some role\\nin facilitating introductions—it is not necessarily a critical factor with the many forms of\\ncommunication available today.\\n 23\\n\\f Case: 17-10503 Document: 00515013011 Page: 24 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\ncommunicate. Merch. Capital, 483 F.3d at 758 n.8 (holding that partners did\\nnot have meaningful voting power, in part, because “[s]uch a move would have\\nrequired a two-thirds vote of geographically distant, unacquainted partners”);\\ncf. Howey, 328 U.S. at 299.\\n But the record is not as clear as the SEC suggests. The record shows\\nthat the investors did in fact communicate with each other. They\\ncommunicated on phone calls. The record also contains emails between a\\nmultitude of investors communicating about a vote to complete a drilling\\nproject. Several investors also declared that they communicated with each\\nother at venture meetings. Another investor declared that he received investor\\ncontact information. The record also shows documents in which the Managers\\nidentified the other investors. And even though Ullrey declared that he feared\\ncontacting other investors after Parvizian allegedly threatened him, he\\nnevertheless sent emails to other investors two years later.\\n The district court did not analyze these documents. With so many\\ninvestors declaring that they could communicate with each other, and evidence\\nof actual communications, the Defendants raised a genuine issue about\\nwhether the investors could communicate with each other and organize.\\nUllrey’s potentially conflicting statements are a case in point on why a full\\nfactual hearing with cross-examination is needed.\\n 6. The Number of Investors\\n Each drilling project had anywhere from 35 to 108 investors. These\\nnumbers run on the high end of the case law. And they seem to be on the high\\nend of industry norms. 20 But at least one case held that 160 investors in a\\npartnership was not a number so large that each partner’s role was “diluted to\\n\\n\\n 20In Industry Deal, the authors explain that these contracts are normally structured\\nwith three investors and an operator on a “third-for-a-quarter” basis. Industry Deal, at 833.\\nInvestors pay one-third of the drilling costs and receive one-quarter of the revenue.\\n 24\\n\\f Case: 17-10503 Document: 00515013011 Page: 25 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nthe level of a single shareholder.” Koch, 928 F.2d at 1479 & n.12; see also\\nRivanna, 840 F.2d at 242 n.10 (4th Cir. 1988) (Powell, J., sitting by\\ndesignation) (finding that a partnership with 23 members was not a security).\\nFurther factual development is needed to determine whether the size of each\\ndrilling project stripped the investors of their power.\\n 7. Conclusion of the First Williamson Factor\\n In sum, there is evidence in the record that (1) the investors had formal\\npowers, (2) they used these powers, (3) the voting structure was not necessarily\\ncoercive, (4) the investors received information, (5) they communicated with\\neach other, and (6) the number of investors was not so high that it eliminated\\nall of their power. We reverse the district court’s ruling on the first Williamson\\nfactor.\\n B. THE SECOND WILLIAMSON FACTOR\\n The second Williamson factor is whether the drilling project investors\\nwere “so inexperienced and unknowledgeable in business affairs” that they\\nwere “incapable of intelligently exercising” their powers. Williamson, 645 F.2d\\nat 424. The second Williamson factor applies to both investors and offerees.\\nGenerally, an interest in a partnership is more likely to be a security if it is\\nsold to “inexperienced and unknowledgeable members of the general public.”\\nId. at 423. But proving that investors are inexperienced requires evidence\\nabout the investors themselves. See Merch. Capital, 483 F.3d at 762 (“[T]he\\nSEC presented uncontradicted evidence that the individual partners had no\\nexperience in the debt purchasing business.”); Nunez, 415 F. App’x at 589\\n(examining the experience of the individual plaintiff); Williamson, 645 F.2d at\\n424–25 (examining the experience of each investor). And investor expertise\\n“must be considered in relation to the nature of the underlying venture.” Long,\\n881 F.2d at 135. This requirement, however, should not be read to suggest\\nthat investors necessarily need a specialized background. If evidence shows\\n 25\\n\\f Case: 17-10503 Document: 00515013011 Page: 26 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nthat an investor can intelligently control his investment, then courts do not\\nrequire specialized experience. See, e.g., Robinson v. Glynn, 349 F.3d 166, 171\\n(4th Cir. 2003) (holding that specialized experience was not required because\\nthe investor showed he was capable of managing his investment); Youmans,\\n791 F.2d at 343, 347 (finding the plaintiff, a physician, sufficiently experienced\\nbecause he “also engaged in a number of business transactions not connected\\nwith [the defendants]”).\\n For example, in Long the investors purchased interests in a cattle farm,\\nwith each investor buying individual cows that were jointly managed by the\\ndefendants. 881 F.2d at 134–136. One important question was whether the\\ninvestors had enough knowledge to manage their own herd of cattle. And when\\nanswering this question, the court did not look only to investors’ experience in\\ncattle raising—it looked to the investors’ attempts to manage the cattle they\\npurchased from the defendants.\\n Looking at those actions, the court easily concluded that the investors\\n“lacked the experience necessary to care for, feed, and market their cattle.” Id.\\nat 135. Some investors “visited the feedyard on one occasion,” but “there was\\nno evidence that [they] sought to give any individual instruction regarding the\\ncare and feeding of their cattle.” Id. One of the investors even “expressed the\\nmistaken impression that a heifer was a breed of cattle.” Id. The investors’\\nactions, established at trial, showed that they could not manage their\\ninvestments, and their lack of specialized experience was the reason why.\\n Similarly, in Nunez an investor-plaintiff argued that he was forced to\\nrely on the manager because he lacked experience in “sand and gravel mining.”\\n415 F. App’x at 589. The investor, however, had taken a variety of actions to\\nmanage his investment. Id. at 590 (“The record establishes that [the investor]\\nparticipated in other managerial decisions in his role as managing partner.”).\\nEven if the investor lacked specialized experience, he failed to prove that this\\n 26\\n\\f Case: 17-10503 Document: 00515013011 Page: 27 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nlack of experience prevented him from “meaningfully exercis[ing] his\\nmanagerial powers.” Id. at 591.\\n 1. The Investors\\n Here, the SEC argues that the investors were inexperienced for two\\nreasons. First, the Defendants engaged in an indiscriminate cold-calling\\ncampaign that did not seek out experienced investors. Second, the SEC points\\nto statements from four investors that they were inexperienced in drilling\\ninvestments. These arguments are not dispositive—at summary judgment, we\\ncannot make an inference about a group of over 340 investors based on this\\nlimited evidence.\\n The cold-calling campaign is probative of the investors’ experience. In\\nassessing the second Williamson factor, courts rightly examine how a\\npartnership acquired its members. See, e.g., Long, 881 F.2d at 135 (holding\\nthat investors in a cattle farm were not experienced, in part, because the\\nscheme “advertised its feeding program in financial publications . . . and in\\nlarge-city newspapers . . . and did not advertise in agricultural periodicals or\\nin other publications likely to have a readership acquainted with cattle-\\nfeeding”). A court can glean information about investors by examining how\\nand from where the partnership attracted them. But when determining\\nwhether investors are experienced, looking at marketing methods is, at best,\\ncircumstantial evidence about the investors. 21 A better place to look is directly\\n\\n\\n 21 The SEC stressed the nationwide cold-calling campaign in their briefs and oral\\nargument. By emphasizing that the Defendants called investors across the country from a\\npurchased lead list, the SEC likened the Defendants’ marketing strategy to that of an\\nindiscriminate telemarketer. If the SEC had presented undisputed evidence that the\\nDefendants used indiscriminate marketing methods, then we agree that this case would fall\\ninto the purview of Long. But this case differs from Long and other similar cases.\\n\\n In Long, the court confronted undisputed evidence that the defendants sought\\ninexperienced investors—the defendants conceded so at trial. Id. at 135. Here, by contrast,\\nthe Defendants maintain that they did not seek out inexperienced investors. And they\\n 27\\n\\f Case: 17-10503 Document: 00515013011 Page: 28 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nat the investors’ actual qualifications. The case law follows this analysis,\\nlooking to investor qualifications and using advertisement methods, if at all,\\nmerely to bolster a conclusion—it is rarely the only piece of evidence. See, e.g.,\\nLong, 881 F.2d at 134–36 (looking to actual evidence of investor experience and\\nthen looking to advertising method); Aqua-Sonic, 687 F.2d 577, 583 (2d Cir.\\n1982) (same); see also Williamson, 645 F.2d at 425 (looking to each investor’s\\nbusiness experience alone). And when it comes to the investors’ actual\\nexperience, the record does not clearly entitle the SEC to summary judgment.\\n As the Defendants point out, the record shows that many investors did,\\nin fact, have experience in oil and gas drilling. For example, one investor\\ndeclared that he had “an engineering background” and “participated in other\\nenergy ventures with Escondido and Patriot Energy.” In an email, another\\ninvestor disclosed that he had “done 83 of these projects over the last ten\\nyears.” Another investor declared that he has “extensive experience in\\ninvesting in domestic energy and often defer[s] to the advice of [his] energy\\nadvisors and petroleum engineers.” Still others had general business\\nexperience.\\n The record also shows that various investors had advisors helping them\\nmake decisions—an important factor in the caselaw. See, e.g., Robinson, 349\\nF.3d at 171; Banghart v. Hollywood Gen. P’ship 902 F.2d 805, 808 n.5 (10th\\nCir. 1990); Rivanna, 840 F.2d at 242 n.10. Balunas stated that many investors\\n\\n\\n\\n\\nsupport this argument with competent summary judgment evidence, which, if believed by a\\nfactfinder, would show that they sought experienced investors. The record suggests that the\\npotential investors on the lead list were vetted for investing experience before being added to\\nthe list. The record also suggests that many investors had prior experience with the\\nDefendants. At summary judgment, viewing the evidence in the light most favorable to the\\nDefendants, we cannot conclude that the Defendants sought out inexperienced investors.\\nThe SEC failed to eliminate genuine issues of material fact about the scope of the Defendants’\\nmarketing and the types of investors they targeted. These questions are better resolved by\\na factfinder.\\n 28\\n\\f Case: 17-10503 Document: 00515013011 Page: 29 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n“had their CPAs or attorneys call” the Defendants before investing. Others\\npersonally visited the well or spoke with the drilling operator or onsite drilling\\nengineers. Another stated that he has “extensive experience in investing in\\ndomestic energy and often defer[s] to the advice of [his] energy advisors and\\npetroleum engineers.”\\n The Defendants also required the investors to represent that they had\\nbusiness experience and were capable of intelligently exercising their\\nmanagement powers. 22 The CIM made clear that only qualified investors were\\neligible. The investors were also required to represent that they were\\naccredited investors. 23 And several of the investors invested in prior Parvizian\\nventures, a factor that this court previously relied upon when holding that\\ninvestors were experienced. See Williamson, 645 F.2d at 425 (“The defendants’\\nexhibits contain documents from previous ventures which indicate that [two\\ninvestors] had already been members of other joint ventures organized by [the\\nmanagers].”).\\n\\n\\n 22 The Defendants belatedly argue that they might qualify for an exemption from the\\nSecurities Act. In 2012, the SEC amended Rule 506 to permit “an issuer to engage in general\\nsolicitation or general advertising in offering and selling securities pursuant to Rule 506”\\nwithout registering the securities, so long as the issuer meets two requirements: (1) “all\\npurchasers of the securities are accredited investors” and (2) “the issuer takes reasonable\\nsteps to verify that such purchasers are accredited investors.” SEC, Eliminating the\\nProhibition Against Gen. Solicitation & Gen. Advert. in Rule 506 & Rule 144a Offerings,\\nRelease No. 3624 (July 10, 2013). Because the Defendants required all investors to represent\\nthat they were accredited investors, Parvizian argues that this exception applies.\\n\\n Parvizian waived this argument by not raising it earlier. Hightower v. Tex. Hosp.\\nAss’n, 73 F.3d 43, 44 (5th Cir. 1996) (holding that arguments raised for the first time in a\\npetition for rehearing were “raised too late in the appellate process to be useful to this court,\\nand they are deemed waived and have played no role in our decision”). But even if he had\\nraised it, the transactions at issue occurred before these amendments, and he cites no\\nlegislative or judicial authority that they should apply retroactively.\\n\\n An “accredited” investor is a person with a net worth over $1,000,000 independently\\n 23\\n\\nor combined with a spouse or with individual income over $200,000 or joint income over\\n$300,000.\\n\\n 29\\n\\f Case: 17-10503 Document: 00515013011 Page: 30 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n The SEC specifically points to statements by Ullrey that he “relied on\\n[Parvizian’s] determination [that completion of a well was appropriate] with\\nno means to verify that this determination was correct” when he voted to\\ncomplete a well. But many other courts have refused to transform an\\ninvestment into a security based on similar statements without further\\ncorroborating proof. See, e.g., Nunez, 415 F. App’x at 589; Robinson, 349 F.3d\\nat 172; Banghart, 902 F.2d at 808 n.5. At summary judgment, this evidence is\\ninsufficient to eliminate all questions of material fact.\\n While Ullrey implies that he was an unsophisticated oil and gas investor,\\nhis email to Parvizian—one of the few emails we have from him—paints a\\ndifferent picture. That email states that (1) he understood a fair amount of the\\nunderlying “geology” of different wells and felt capable of “comparing” reports\\nfrom “each geologist”; (2) he was comfortable analyzing the “engineering”\\nacross wells; (3) he knew many drilling acronyms and terms; and (4) he knew\\nhow to analyze production zones and past production history. As one example\\nthat he might not be as unsophisticated as the SEC argues, he specifically\\nasked why fracking technology had not been used even though “the gas\\nproduction has been 140 MCF monthly for 2008 and 2009” and “the fractional\\ntechnology has been available for at least as long as this well has been in\\nexistence.”\\n Outside of questions about his technological knowledge, the summary\\njudgment record does not show conclusively that Ullrey was unsophisticated.\\nHe had an investment advisor he consulted. And, as noted above, courts have\\nheld that an advisor is a critical fact showing that an investor does not lack\\nsophistication. See, e.g., Robinson, 349 F.3d at 171; Banghart, 902 F.2d at 808\\nn.5; Rivanna, 840 F.2d at 242 n.10. He was a CPA and stated that he would\\nfeel comfortable analyzing the finances of the joint venture. He also organized\\na lot of investors into an email thread.\\n 30\\n\\f Case: 17-10503 Document: 00515013011 Page: 31 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n This mixed record about Ullrey is a case in point. The summary\\njudgment evidence about Ullrey is mixed, he has not been subjected to cross-\\nexamination, and his statements present quintessential credibility\\ndeterminations. On summary judgment with the current record, we cannot\\nconclude, as a matter of law, that Ullrey was inexperienced, as inexperienced\\nis defined by Williamson and its progeny. A jury is better suited to determining\\nwhether Ullrey was capable of intelligently controlling his investments.\\n Nor can the court determine whether any of the unidentified investors\\nwere inexperienced. Through competing summary judgment motions, both\\nparties asked the court to determine that the pool of over 340 investors had or\\nlacked experience based on limited evidence about roughly 25. At summary\\njudgment, the court cannot make factual inferences about roughly 340\\ninvestors based on such limited evidence, especially when that evidence is\\nmixed.\\n 2. The Offerees\\n The SEC also argues that the Defendants targeted inexperienced\\nofferees. But the record with respect to offerees is limited. And the limited\\nsummary judgment record does not allow us to conclude, as a matter of law,\\nthat the offerees were necessarily inexperienced.\\n First, the tenor of the evidence is that the cold-call list was not meant to\\ninclude inexperienced offerees. Cooper stated that the list might have included\\nonly accredited investors. He also suggested that salespeople did not target\\nonly new, accredited clients—they also called current clients, who would have\\nprior knowledge of the Defendants. This prior relationship, as noted above, is\\nan important factor in the caselaw. See Williamson, 645 F.2d at 425. Balunas\\nalso indicated that he only made offers to accredited investors. Meanwhile, the\\nSEC presented no evidence to challenge these facts, which we must consider in\\nthe light most favorable to the Defendants.\\n 31\\n\\f Case: 17-10503 Document: 00515013011 Page: 32 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Second, the evidence about investors—a sample that sheds light on the\\nofferees—indicates that many were experienced in oil and gas investment.\\nOther courts have used similar reasoning, inferring the offerees’ qualifications\\nfrom the group of eventual investors. For example, in Aqua-Sonic, the Second\\nCircuit used investor qualifications to shed light on the type of investor that\\nthe defendant was targeting (i.e., to determine the offerees’ qualifications). 687\\nF.2d at 583–84 (“However, none of the 50 licensees had any such [specialized]\\nexperience. This was not mere coincidence. The record does not indicate that\\nany attempts were made to locate such purchasers.”). Taking the eventual\\ninvestors as a sample of the offerees, we cannot conclude that the offerees\\nlacked experience. But we are equally incapable of making the opposite\\ninference. Both parties seek to use a small subset of investors to establish the\\nexperience level of the entire group of offerees. And they both seek to do so\\nwithout any direct evidence about the offerees’ qualifications. Given the\\nlimited record and the procedural posture—summary judgment—we cannot\\ndetermine whether the offerees were experienced or not. This factual\\ndetermination is better left to a finder of fact.\\n 3. Conclusion of the Second Williamson Factor\\n These facts taken together raise a genuine issue about the offerees’ and\\ninvestors’ knowledge and experience. 24 The SEC’s evidence does show that at\\n\\n\\n\\n\\n 24 The SEC argues that all investors and offerees need specialized experience. But no\\ncourt has ever explicitly held that every investor needs specialized experience. Courts,\\ninstead, have taken a holistic view of the investors, the type of business at issue, and the deal\\nstruck by the parties. See, e.g., Long, 881 F.2d at 134–136; Howey, 328 U.S. at 296. These\\nfacts, along with others, help the court determine whether the investors had enough\\nexperience to intelligently exercise their partnership powers. We note, however, that in at\\nleast one other case, we did not require all investors in a partnership to have specialized\\nexperience where other evidence showed they could control their investments. See\\nWilliamson, 645 F.2d at 424–25.\\n\\n 32\\n\\f Case: 17-10503 Document: 00515013011 Page: 33 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nleast some investors were not experienced, 25 but not enough to grant summary\\njudgment in the face of the Defendants’ competing evidence, especially on “a\\nquestion of fact which should be resolved in the first instance by the trial\\ncourt.” Koch, 928 F.2d at 1479. We, therefore, reverse the district court’s\\ndecision to grant summary judgment on the second Williamson factor.\\n C. THE THIRD WILLIAMSON FACTOR\\n The third Williamson factor is whether the investors are so “dependent\\non some unique entrepreneurial or managerial ability of [the Managers] that\\n[they] cannot replace the manager of the enterprise or otherwise exercise\\nmeaningful partnership or venture powers.” Williamson, 645 F.2d at 424. As\\nexplained in Williamson, this factor looks to the unique capabilities of the\\nmanager. If the manager has a “non-replaceable expertise” that drew the\\ninvestors to the venture, then they might “be left with no meaningful option”\\nother than the manager. Id. at 423. For example, investors may be induced to\\nenter a “real estate partnership on the promise that the partnership’s manager\\nhas some unique understanding of the real estate market in the area in which\\nthe partnership is to invest.” Id. Any right to “replace the manager” would\\nonly come at the expense of “forfeiting the management ability on which the\\nsuccess of the venture is dependent.” Id. Dependence, however, does not\\nextend to the delegation of management duties—“[t]he delegation of rights and\\nduties—standing alone—does not give rise to the sort of dependence on others\\nwhich underlies the third prong of the Howey test.” Id.\\n\\n\\n\\n\\n 25 This evidence consists mainly of brief statements by investors. One investor said\\nthat he did not “understand everything,” but the record contains no other information about\\nhim. Another investor claimed that she was a “novice investor.” Again, the record has no\\nfurther information about her. Another claimed that he was “new to the oil industry.” The\\nrecord contains no further evidence about him either. Finally, one “inexperienced” investor\\nhad over $2,000,000 in assets, was an engineering director, and had an investment advisor.\\nA fact-finder is better suited to weigh the probative value of this evidence.\\n 33\\n\\f Case: 17-10503 Document: 00515013011 Page: 34 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Here, the SEC argues that the Managers were effectively irreplaceable\\nnot because of some special skill, but because they had the sole ability to\\nenforce drilling contracts with the subcontractors and unfettered control over\\nthe drilling projects’ assets. According to the CIMs and JVAs, all investor\\nfunds would be transferred to one of the Managers, who would then\\nsubcontract with other companies, which were identified in the CIMs, to\\ncomplete the drilling. According to the SEC, this created two problems. First,\\neven if the investors removed the Managers, they would still be party to the\\ncontracts with the subcontractors, making the investors reliant on them—even\\nif removed, the Managers still had the power to enforce, or not enforce, the\\ndrilling contracts. Second, the Managers controlled all of the investors’ funds.\\nFunds were transferred from the drilling projects into an operating account at\\nAschere or Arcturus, and investors had no right to the funds. At least one case\\nheld that a manager is effectively irremovable where it controls investors’\\nfunds and has the sole ability to recoup them. Merch. Capital, 483 F.3d at 764.\\n Neither of the SEC’s arguments is convincing. The first argument is\\nunconvincing because the record is not clear enough to say, as a matter of law,\\nthat the web of contracts between the projects, Managers, and subcontractors\\nmade the Managers irremovable. Nothing in the record demonstrates that, if\\nArcturus or Aschere were removed, the drilling projects would be unable to\\nenforce their contracts. On the contrary, the record suggests that the drilling\\nprojects would still have contracts with Aschere and Arcturus, who, in turn,\\nwould have enforceable contractual relationships with the subcontractors.\\nNothing in the record suggests that a new manager could not enforce the\\ncontract with Aschere or Arcturus through this relationship. And if Aschere\\nor Arcturus failed to perform after being paid, the drilling projects would be in\\nthe same position as if some other contracting company failed to perform.\\n\\n\\n 34\\n\\f Case: 17-10503 Document: 00515013011 Page: 35 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n The state of the record in this case contrasts markedly with Merchant\\nCapital—the primary case that the SEC cites for their argument. In Merchant\\nCapital, the structure of the contractual relationships was like the structure\\nhere. The defendant managers there took funds from multiple investors,\\npooled them, and then pooled them again. The defendants, on behalf of the\\npartnership, entered into a contract with a service-providing company, New\\nVision, who then entered into a contract with another company, EAM. Investor\\nfunds were pooled by New Vision, and then repooled with other funds by EAM.\\nThe ultimate question was whether (1) individual investors could get their\\nfunds back from the defendant, or (2) they depended on the defendant to get\\ntheir funds back.\\n The court held that the investors depended on the defendant for two\\nreasons. First, the defendant did not have effective contractual rights against\\nthe service companies. The defendant had pooled the partnership’s funds in\\naccounts “owned by New Vision.” Id. at 764. And the defendant could not get\\nthose funds back except “in limited circumstances, or upon termination of the\\nentire contract.” Id. Second, even if the investors replaced the defendant with\\na new manager, the right to demand return of investor funds belonged solely\\nto the defendant, not to the partnership. Id. Notably, all of these practical\\ndifficulties with removing the defendant were established at trial. Here,\\nthough, the SEC merely assumes that the right to enforce the contracts with\\ndrilling subcontractors sits solely with the Managers, like in Merchant Capital.\\nBut no evidence shows that the investors would be unable to enforce a drilling\\ncontract if Arcturus or Aschere were removed as the Manager.\\n While it is true that the Managers made contractual promises to find\\nsubcontractors to do the drilling, a mere contractual promise is not enough to\\nfind the Managers irreplaceable. In Williamson, like here, the manager,\\nGodwin Investments, drafted the relevant venture agreements and promised\\n 35\\n\\f Case: 17-10503 Document: 00515013011 Page: 36 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\nto perform most of the significant tasks in a real estate venture, like developing\\nthe land and rezoning it. But the court held that these contractual provisions\\nwere not enough to satisfy the third Williamson factor—more is required to\\nestablish irremovability than mere contractual relationships.\\n It is true that the Property would ultimately have to be developed\\n or sold, and in the interim managed, before a profit could be\\n returned on it; and it is true that Godwin Investments promised to\\n perform these tasks. But this alone does not establish a\\n dependence on Godwin Investments so great as to deprive the\\n plaintiffs of their partnership powers. The plaintiffs must allege\\n that Godwin Investments was uniquely capable of such tasks or\\n that the partners were incapable, within reasonable limits, of\\n finding a replacement manager. Godwin Investment’s promise\\n must be more than a binding contract enforceable under state law;\\n it must create the sort of dependence implicit in an investment\\n contract.\\nWilliamson, 645 F.2d at 425 (emphasis added). In short, Aschere and Arcturus\\nare not irreplaceable simply because they made contractual promises to the\\ndrilling projects.\\n The SEC’s second argument—the Managers were irremovable because\\nthey controlled all of the investors’ funds—is unconvincing for two reasons.\\nFirst, the investors never expected to recover their funds unless the oil and gas\\nwells became productive. The investors did not invest in a pool of debt\\ninstruments from which they could withdraw their funds, like in Merchant\\nCapital. The investors sunk their capital into an exploratory drilling project\\nknowing that they would not get it back unless the well became productive.\\nAnd making the well productive would require further investment. They\\nessentially bought the right to see if the well might be productive, and, if so, to\\ninvest in completing the well. The investors could not get back their funds\\nbecause they spent them on an exploratory drilling contract—one phase of the\\ntotal operation—not because the Managers controlled them.\\n\\n\\n 36\\n\\f Case: 17-10503 Document: 00515013011 Page: 37 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-10503\\n Second, the investment here was segmented, as noted above. This case\\nwould present a different question if the investors, from the outset, gave all of\\ntheir funds to the Managers for every phase of the contract—drilling,\\ncompletion, and subsequent operations—and then the Managers transferred\\nthose funds to themselves. In that situation, the Managers might be\\nirreplaceable.\\n At least one case suggests that locking investors from the outset into\\nturnkey contracts with the manager for each stage of the process might make\\na manager irreplaceable. SEC v. Shields dealt with an almost identical drilling\\nproject, but at the motion to dismiss stage. There, the court held that the SEC\\nstated enough facts to satisfy the first Williamson factor. Shields, 744 F.3d at\\n645. The first factor was satisfied, even though the investors had the power to\\nremove the manager, because the manager hired itself as the main contractor\\nfor the “turnkey drilling and completion contracts.” Id. at 647 (emphasis\\nadded). Here, though, the investors were not locked into drilling and\\ncompletion contracts—they plausibly were able to cut Aschere and Arcturus\\nout of any completion contracts or subsequent operations.\\n The Defendants put forth enough evidence to raise a genuine issue\\nconcerning whether the Managers were effectively irreplaceable. We,\\ntherefore, reverse the district court’s ruling on the third Williamson factor.\\n III. CONCLUSION\\n In sum, the Defendants raised several issues of material fact that the\\ndistrict court failed to consider. For the foregoing reasons, the judgment of the\\ndistrict court is REVERSED and REMANDED for trial.\\n\\n\\n\\n\\n 37\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2474,"cells":{"id":{"kind":"number","value":4634850,"string":"4,634,850"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Charles Devan FULTON, Sr., Also Known as Black, Also Known as Blacc, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Charles Fulton, Sr."},"decision_date":{"kind":"string","value":"2019-06-27"},"docket_number":{"kind":"string","value":"17-41251"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wiener, Southwick, Costa\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-41251 Document: 00515013555 Page: 1 Date Filed: 06/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-41251 FILED\\n June 27, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nCHARLES DEVAN FULTON, SR., also known as Black, also known as Blacc,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\n ON PETITION FOR REHEARING\\n\\n\\nBefore WIENER, SOUTHWICK, and COSTA, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n The petition for rehearing is DENIED. The court’s prior opinion is\\nwithdrawn, and this opinion is substituted.\\n A jury convicted Charles Fulton, Sr. on four counts of sex trafficking and\\none count of conspiracy. The most significant issue concerns a long-delayed\\nsearch of his cellphone. Fulton also makes arguments drawn from the\\nConfrontation and Grand Jury clauses of the Constitution, and he challenges\\nthe sufficiency of the evidence. We AFFIRM.\\n\\f Case: 17-41251 Document: 00515013555 Page: 2 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n FACTUAL AND PROCEDURAL BACKGROUND\\n In October 2014, a Galveston juvenile probation officer learned from the\\nfather of a juvenile she supervised that the girl was pictured in an online\\nadvertisement offering her services as an “escort” – in effect, a prostitute. The\\nprobation officer began to investigate and saw that the house where the girl\\nhad been arrested was a location where other young girls consistently were\\narrested. She began monitoring incoming police reports, spoke with some of\\nthe girls, compiled a list of names and ages, and gathered information from\\nother probation officers. Her investigation revealed common links among the\\ngirls: Charles Fulton, Sr. and a residence on Avenue L. In February and early\\nMarch 2015, the Galveston Police Department, in tandem with the FBI, began\\nan investigation. Police discovered that Fulton acted as the girls’ pimp,\\ndirecting them to prostitution dates; providing them with food, condoms,\\nhousing, and drugs; and having sex with some of them as young as 15.\\n In May 2016, Fulton was indicted in the United States District Court for\\nthe Southern District of Texas on six counts of sex trafficking in violation of 18\\nU.S.C. § 1591(a)–(b) (2015), with a different minor victim identified in each\\ncount. Fulton was also charged with a seventh count for conspiracy to commit\\nsex trafficking under 18 U.S.C. § 1594(c). He was found guilty after a jury trial\\non four of the substantive counts and on the conspiracy count. The district\\ncourt sentenced him to prison for concurrent life terms.\\n\\n\\n DISCUSSION\\n We will analyze four issues. First, Fulton asserts the district court\\nadmitted evidence obtained from his cellphone in violation of the Fourth\\nAmendment. Second, he argues the district court violated the Confrontation\\nClause by prohibiting him from questioning one of the minor victims about a\\npurported aggravated assault charge. Third, he argues that special findings\\n 2\\n\\f Case: 17-41251 Document: 00515013555 Page: 3 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nmade by the jury in two of his counts of conviction were not supported by\\nsufficient evidence. Finally, Fulton contends the district court violated the\\nGrand Jury Clause by constructively amending the indictment. 1\\n\\n\\nI. Search of Fulton’s phone\\n In February 2015, Galveston police obtained a search warrant on the\\nAvenue L house where the prostitution was based. The warrant, though, was\\ndue to a separate investigation into Fulton’s narcotics activities. Fulton’s\\ncellphone was seized. Nine days later, police obtained a second warrant to\\nexamine its contents but were unable to bypass the phone’s security features.\\nAround this same time, the FBI agent assisting with the Fulton sex-trafficking\\ninvestigation learned that the Galveston police had the phone. The agent\\nacquired it to determine if the FBI could access the phone’s data. Three weeks\\nlater, that agent obtained a federal warrant to search the phone. Still, it took\\na year before the data on the phone was accessed. The FBI discovered evidence\\nthat helped piece together Fulton’s involvement with the minor victims.\\nFulton moved to suppress the evidence, but the district court denied the\\nmotion. At trial, the Government introduced evidence of the phone’s contents\\nthrough the testimony of the FBI agent and of minor victims. The district court\\nalso admitted evidence such as text messages, a photograph, and the results of\\nsearches of the phone’s files, linking Fulton to five minor victims and revealing\\nbehaviors consistent with sex trafficking.\\n\\n\\n\\n\\n 1 At trial, Fulton also raised issues bearing on Jencks Act, Brady, and Giglio material.\\nSee 18 U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405\\nU.S. 150 (1972). At oral argument in this court he requested that we review the district\\ncourt’s determinations on these issues. In his brief he mentioned his request for Brady\\nmaterial and suggested we “review the propriety of the district court’s determinations.” We\\nwill not consider such “passing reference[s]” that are devoid of legal analysis. Hollis v. Lynch,\\n827 F.3d 436, 451 (5th Cir. 2016) (citation omitted).\\n 3\\n\\f Case: 17-41251 Document: 00515013555 Page: 4 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n On appeal, Fulton argues that the phone’s seizure in the February 2015\\nraid violated the Fourth Amendment. He alternatively argues that even if the\\ninitial seizure had been lawful, the nine-day delay in obtaining a warrant to\\nsearch it was unconstitutional. At oral argument, Fulton’s counsel stated that\\nthose two arguments are the limit of the objections to the search and seizure.\\nThus, no issue is made about the FBI’s obtaining the phone, procuring its own\\nsearch warrant, and finally accessing the data on the phone a year later.\\n We review a ruling on a motion to suppress “in the light most favorable\\nto the verdict,” accepting “the district court’s factual findings unless clearly\\nerroneous or influenced by an incorrect view of the law” and reviewing\\n“questions of law de novo.” United States v. Carrillo-Morales, 27 F.3d 1054,\\n1060–61 (5th Cir. 1994). The disagreements here are ones of law. We review\\nthe sufficiency of the warrant authorizing the seizure of Fulton’s phone de\\nnovo. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We also\\nreview the district court’s determination of the reasonableness of a search or\\nseizure de novo. United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998).\\n\\n\\n A. Whether the narcotics warrant authorized the phone’s seizure\\n We start with whether the initial seizure of the phone was proper.\\nFulton contends “the warrant did not particularly describe the phone as one of\\nthe items to be seized.” The Constitution states that a warrant should not\\nissue without “particularly describing” what is to be seized. U.S. CONST.\\namend. IV. A warrant’s particularity is sufficient if “a reasonable officer would\\nknow what items he is permitted to seize,” which does not mean all items\\nauthorized to be taken must be specifically identified. United States v. Aguirre,\\n664 F.3d 606, 614 (5th Cir. 2011). “We have upheld searches as valid under\\nthe particularity requirement where a searched or seized item was not named\\n\\n\\n 4\\n\\f Case: 17-41251 Document: 00515013555 Page: 5 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nin the warrant, either specifically or by type, but was the functional equivalent\\nof other items that were adequately described.” Id.\\n This narcotics warrant did not mention cellphones. The alleged\\nequivalent was a reference to “ledgers,” which is a “book . . . ordinarily\\nemployed for recording . . . transactions.” Ledger, OXFORD ENGLISH\\nDICTIONARY (2d ed. 1989). The government argues that is enough, because\\nthis court has held that a cellphone that is “used as a mode of both spoken and\\nwritten communication and containing text messages and call logs, served as\\nthe equivalent of records and documentation of sales or other drug activity.”\\nAguirre, 664 F.3d at 615. In that precedent, a warrant permitted seizure of a\\ncellphone when it referred to “personal assets including computers, disks,\\nprinters and monitors utilized in the drug trafficking organization.” Id. at\\n614–15. That is because what was seized were “the functional equivalents of\\nseveral items listed” on the warrant. Id. at 615. We also held that if\\nmeaningful particularity is not possible, “generic language suffices if it\\nparticularizes the types of items to be seized.” Id. at 614 (quoting Williams v.\\nKunze, 806 F.2d 594, 598 (5th Cir. 1986)).\\n We do not see the same factors involved in the present case. There was\\nnothing in the Galveston warrant suggesting that anything similar to\\ncomputers or even electronics was to be seized. Moreover, the officer in this\\ncase was a veteran of the Galveston Police Department’s narcotics unit, and he\\nindicated at the suppression hearing that he knew cellphones are used in the\\ndrug trade. Though a ledger can serve one of the myriad purposes of a\\ncellphone, we do not extend the concept of “functional equivalency” to items so\\ndifferent, particularly one as specific, distinguishable, and anticipatable as a\\ncellphone.\\n We now examine an exception to the exclusionary rule that nonetheless\\nallows the introduction of the evidence from the phone.\\n 5\\n\\f Case: 17-41251 Document: 00515013555 Page: 6 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n B. Good faith\\n An exception for good faith may allow the introduction of evidence\\nunlawfully obtained “[w]hen police act under a warrant that is invalid for lack\\nof probable cause.” Herring v. United States, 555 U.S. 135, 142 (2009). Here,\\nof course, we have held the initial seizure of the phone to be invalid because,\\nregardless of probable cause, the phone was not covered by the warrant.\\n To constitute good faith, the “executing officer’s reliance on the\\n[deficient] warrant [must be] objectively reasonable and made in good faith.”\\nUnited States v. Massi, 761 F.3d 512, 525 (5th Cir. 2014) (citation omitted).\\nThe Government argues the FBI agent’s reliance on the federal search warrant\\nmeets these requirements. Fulton argues we should the good faith exception\\nshould not apply “to situations where law enforcement unreasonably delays in\\nobtaining a search warrant.” The district court refused to consider this\\nexception because it held the phone and its contents to be admissible on other\\ngrounds.\\n In Massi, law enforcement officers prolonged a proper investigatory stop\\nbased on reasonable suspicion well beyond the time permitted. Id. at 522–23.\\nThe officers detained the suspects for several hours “until evidence could be\\ncorroborated, an affidavit prepared, and the search warrant obtained.” Id. at\\n523. We applied the following test to determine whether the invalid seizure of\\nthe suspects while evidentiary justification for a warrant was developed would\\nnonetheless allow the introduction of evidence that was later obtained:\\n (1) the prior law enforcement conduct that uncovered evidence\\n used in the affidavit for the warrant must be “close enough to the\\n line of validity” that an objectively reasonable officer preparing the\\n affidavit or executing the warrant would believe that the\\n information supporting the warrant was not tainted by\\n unconstitutional conduct, and (2) the resulting search warrant\\n must have been sought and executed by a law enforcement officer\\n in good faith.\\n\\n 6\\n\\f Case: 17-41251 Document: 00515013555 Page: 7 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nId. at 528.\\n This same approach can be applied when, as here, the initial seizure of\\nan object was without justification, but a later-obtained warrant led to the\\ndiscovery of incriminating evidence.\\n We have already discussed the events that followed the seizure of the\\ncellphone. We conclude that viewed objectively, an FBI agent who obtained a\\nsearch warrant in these circumstances would not have had reason to believe\\nthe seizure and continued possession of the cellphone by the Galveston police\\nwere unlawful. We so conclude because the question of whether the warrant\\napplied to the cellphone does not lead to an easy negative answer, though that\\nis the one we have given. Consequently, the seizure of the cellphone was “close\\nenough to the line of validity” to permit the officer to prepare the second\\nwarrant that led to the search of the cellphone. The federal search warrant\\nwas “sought and executed by a law enforcement officer in good faith.” Id.\\n The cellphone evidence obtained was properly admitted.\\n\\n\\nII. Confrontation Clause violation regarding a witness\\n Fulton argues he was improperly limited on the range of cross-\\nexamination of a witness. The Government called Minor Victim 3 to testify.\\nShe admitted that the FBI agent investigating the sex trafficking case sought\\nher assistance and that she initially refused to help. She also admitted that\\nshe later contacted the FBI agent after she was jailed apparently on state\\ncharges. She changed her mind again later, resisted testifying, and appeared\\nat trial only after being brought to court under a material-witness warrant.\\n Fulton wanted to cross-examine her on what he understood to be an\\naggravated assault arrest in her “juvenile history” to probe her motives for\\ncontacting the FBI agent. Fulton sought to impeach her on the theory that she\\ncontacted the FBI agent thinking he could help her “get off that aggravated\\n 7\\n\\f Case: 17-41251 Document: 00515013555 Page: 8 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nassault charge.” There is no indication that any assault charge was related to\\nFulton’s offense. The district court refused to let Fulton pursue this line of\\nquestioning. Counsel was permitted to ask if “any member of law enforcement\\noffered [her] any kind of . . . benefit in exchange for testifying.” Fulton argues\\nthis restriction violated his Sixth Amendment right to confrontation.\\n We review alleged Confrontation Clause violations de novo. United\\nStates v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). We analyze “whether the\\njury had sufficient information to appraise the bias and motives of the\\nwitness.” United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010)\\n(citation omitted). Fulton “need only show that ‘a reasonable jury might have\\nreceived a significantly different impression of the witness’s credibility had\\ndefense counsel been permitted to pursue his proposed line of cross-\\nexamination.’” Id. (citation omitted). In the context of purported deals with\\nthe Government, it does not matter whether an agreement was reached: “What\\ncounts is whether the witness may be shading his testimony in an effort to\\nplease the prosecution.” Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir.\\n1981). At the same time, the Confrontation Clause does not permit a defendant\\nto cross-examine a witness if there are sufficient concerns of “harassment,\\nprejudice, confusion of the issues, the witness’ safety, or interrogation that is\\nrepetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,\\n679 (1986).\\n Fulton relies primarily on Davis v. Alaska, 415 U.S. 308 (1974). The\\ndefendant there was convicted in state court based on “crucial” testimony from\\na juvenile who was on probation after having previously been adjudicated\\ndelinquent in state court for two burglaries. Id. at 310–11. The defendant\\nwanted to introduce the witness’s juvenile record for these reasons: the witness\\nmay “have made a hasty and faulty identification of petitioner to shift\\nsuspicion away from himself as one who [actually committed the crime, and\\n 8\\n\\f Case: 17-41251 Document: 00515013555 Page: 9 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nthe witness] might have been subject to undue pressure from the police and\\nmade his identifications under fear of possible probation revocation.” Id. at\\n311. Instead of the juvenile record’s being admitted, the defendant was\\nallowed to ask questions about the witness’s state of mind in cooperating with\\nthe police. Id. at 311–13. This limitation violated the Confrontation Clause.\\nId. at 318. Without the specificity of the juvenile record, jurors “might well\\nhave thought that defense counsel was engaged in a speculative and baseless\\nline of attack on the credibility of an apparently blameless witness.” Id.\\n Fulton argues that Minor Victim 3 had reason to alter her testimony in\\na federal prosecution in order to receive assistance in a state juvenile\\nproceeding. We consider the fact that this witness’s prosecutions were by two\\ndifferent sovereigns on two unrelated crimes to be critical. Davis is based on\\nthe fact that state prosecutors had the ability and perhaps some reason to\\ncharge that witness with the same offense and perhaps also could have affected\\nhis state probation on two other burglary offenses; the witness had ample\\nmotivation for identifying a different culprit. Id. at 317–18. We see no reason\\nto make such assumptions when the witness appeared in a federal court trial\\nand the separate matter was in state court. “[N]othing in the record or\\npleadings suggest[ed] that the federal prosecutor could have influenced any\\nstate juvenile-court proceedings and thereby provided an inducement for the\\nvictims to testify in the federal trial.” United States v. Miller, 538 F. App’x 501,\\n501 (5th Cir. 2013) (citing United States v. Thorn, 917 F.2d 170, 176 (5th Cir.\\n1990) (proper to limit cross-examination when there was no showing federal\\nprosecutors could influence an unrelated state prosecution of a witness)).\\n We conclude that Fulton has not shown that the witness had a reason to\\nbe biased based on the unrelated offense. We also conclude that the effect of\\nlimiting cross-examination of this witness was minimal, as ample other\\n\\n\\n 9\\n\\f Case: 17-41251 Document: 00515013555 Page: 10 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nevidence existed of Fulton’s guilt of this offense. The district court did not err\\nin not allowing Fulton to probe this witness about any state charge.\\n\\n\\nIII. Sufficiency of evidence on special findings\\n The statute of Fulton’s convictions on the substantive counts required\\nthat he either knew or recklessly disregarded (1) “that means of force, threats\\nof force, fraud, coercion . . . or any combination of such means will be used to\\ncause the [victim] to engage in a commercial sex act” or (2) “that the [victim]\\nhas not attained the age of 18 years and will be caused to engage in a\\ncommercial sex act.” 18 U.S.C. § 1591(a) (2015). Fulton was convicted on four\\nof these substantive counts. For two of them, Counts 2 and 7, the district court\\ninstructed the jury to look only for the second of the two possible findings.\\nConviction on those counts is not contested.\\n On Counts 4 and 6, the district court instructed the jury that it could\\nmake either finding. Accordingly, the jury entered special findings on Counts\\n4 and 6 that Fulton “used force, threats of force, fraud or coercion” and “at the\\ntime of the offense, the victim had attained the age of 14 years but had not\\nattained the age of 18 years.” Fulton argues there was insufficient evidence\\nfor the jury to find he “used force, threats of force, fraud or coercion” on these\\ntwo counts.\\n Fulton moved in the district court for a judgment of acquittal after the\\nGovernment’s case-in-chief. He renewed the motion after his own case-in-\\nchief. Consequently, we review his evidentiary sufficiency contentions de novo;\\nthe analysis considers “all evidence in the light most favorable to the verdict”\\nand asks “only whether the jury’s decision was rational, not whether it was\\ncorrect.” United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014) (citations\\nomitted).\\n\\n\\n 10\\n\\f Case: 17-41251 Document: 00515013555 Page: 11 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n There is evidence Fulton used force and threats with the minor victims\\nassociated with Counts 4 and 6. There was testimony he threatened\\nto “beat . . . up” one victim. He also hit the other victim because she was\\nleaving him, making “a big handprint on [her] face.” That victim further\\ntestified Fulton choked her for “talking to other guys.” There was also\\ntestimony that Fulton emotionally and financially manipulated the victims so\\nas to support a finding of coercion. See § 1591(e)(2), (e)(4) (2015).\\n Even if this evidence were not sufficient, Fulton’s convictions would be\\nunaffected. Either one of the special findings in Counts 4 and 6 supported a\\nconviction under Section 1591(a). A finding of force, threats, fraud, or coercion\\ncarried a minimum sentence of 15 years; a finding that the victim “had\\nattained the age of 14 years but had not attained the age of 18 years” carried\\na minimum sentence of 10 years. § 1591(b). Either finding carried a maximum\\nsentence of life. Id. Even if we hold the findings of force, threats, fraud, or\\ncoercion were not supported by sufficient evidence, it remains true the jury\\nfound the victims to be younger than 18. That leaves Fulton guilty under\\nCounts 4 and 6 with a maximum sentence of life, which he received for both.\\nWe leave his convictions on Counts 4 and 6 undisturbed.\\n\\n\\nIV. Grand Jury Clause violation\\n The final issue concerns what is argued to be effectively an improper\\namendment of the indictment concerning Fulton’s knowledge of the age of his\\nvictims. Section 1591(a) permits the Government to convict a defendant on\\nalternative theories. For one of the theories, the Government is not required\\nto prove that the defendant “knew, or recklessly disregarded the fact, that the\\nperson had not attained the age of 18 years.” § 1591(c). Instead, the evidence\\nonly has to prove that “the defendant had a reasonable opportunity to observe\\n\\n\\n 11\\n\\f Case: 17-41251 Document: 00515013555 Page: 12 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nthe” victim. Id. Fulton’s indictment does not mention this “reasonable\\nopportunity to observe” concept.\\n Fulton argues on appeal that the district court imported this concept\\ninto the case by giving this jury instruction: “If the Government proves beyond\\na reasonable doubt that the defendant had a reasonable opportunity to observe\\nthe [alleged victims] . . . then the government does not have to prove that the\\ndefendant knew that the person had not attained the age of 18 years.” Fulton\\nargues this instruction allowed the jury to convict on a basis broader than that\\nstated by the indictment. He did not make this argument in district court.\\n Our analysis starts with the special role of indictments under our\\nConstitution: “No person shall be held to answer for a capital, or otherwise\\ninfamous crime, unless on a presentment or indictment of a Grand Jury.” U.S.\\nCONST. amend V. A district court errs by “permit[ting] the defendant to be\\nconvicted upon a factual basis that effectively modifies an essential element of\\nthe offense charged or permits the government to convict [a] defendant on a\\nmaterially different theory or set of facts than that with which she was\\ncharged.” United States v. Thompson, 647 F.3d 180, 184 (5th Cir. 2011)\\n(citation omitted).\\n In one precedent we discussed the exact issue presented by Fulton.\\nThere, an indictment charged two defendants under Subsections 1591(a) and\\n(b)(2) “but did not include the ‘reasonable opportunity’ language found in\\n[S]ubsection (c).” United States v. Lockhart, 844 F.3d 501, 515 (5th Cir. 2016).\\nAs here, the district court instructed the jury using Subsection (c) language.\\nId. We held “the district court materially modified an essential element of the\\nindictment by transforming the offense . . . the indictment charged . . . from\\none requiring a specific mens rea into a strict liability offense.” Id. at 515–16\\n(emphasis added).\\n\\n\\n 12\\n\\f Case: 17-41251 Document: 00515013555 Page: 13 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n That error caused us to reverse the judgment of conviction of one\\ndefendant but not of the other. Id. at 516. Prejudice need not be shown if a\\ntimely objection is made in the district court to the violation of the right to be\\ntried only by a properly issued indictment; only one of the two Lockhart\\ndefendants objected. Id. at 515–16, 515 n.3. His was the judgment of\\nconviction we vacated. Id.\\n His codefendant did not object to the broadening of the indictment, and\\nwe reviewed his conviction for plain error. Id. at 515 n.3. We will reverse a\\nconviction for plain error only when: “(1) [the instruction] was erroneous; (2)\\nthe error was plain; and (3) the plain error affected the substantial rights of\\nthe defendant.” United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001).\\nEven if those requirements are met, we will exercise discretion to reverse the\\ndistrict court only if “the error ‘seriously affect[s] the fairness, integrity or\\npublic reputation of judicial proceedings.’” Id. (citation omitted). We held in\\nLockhart that regardless of the first three factors of plain error review, we\\nwould decline to exercise our discretion to reverse because of the “substantial\\nevidence against” the defendant. Lockhart, 844 F. 3d at 515 n.3.\\n The evidence against Fulton was also “substantial,” and we refuse to\\nvacate his convictions based on the jury instruction.\\n AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412103/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WIENER"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4634850/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Charles Devan FULTON, Sr., Also Known as Black, Also Known as Blacc, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-41251 Document: 00515013555 Page: 1 Date Filed: 06/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-41251 FILED\n June 27, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nCHARLES DEVAN FULTON, SR., also known as Black, also known as Blacc,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\n ON PETITION FOR REHEARING\n\n\nBefore WIENER, SOUTHWICK, and COSTA, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n The petition for rehearing is DENIED. The court’s prior opinion is\nwithdrawn, and this opinion is substituted.\n A jury convicted Charles Fulton, Sr. on four counts of sex trafficking and\none count of conspiracy. The most significant issue concerns a long-delayed\nsearch of his cellphone. Fulton also makes arguments drawn from the\nConfrontation and Grand Jury clauses of the Constitution, and he challenges\nthe sufficiency of the evidence. We AFFIRM.\n\f Case: 17-41251 Document: 00515013555 Page: 2 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\n FACTUAL AND PROCEDURAL BACKGROUND\n In October 2014, a Galveston juvenile probation officer learned from the\nfather of a juvenile she supervised that the girl was pictured in an online\nadvertisement offering her services as an “escort” – in effect, a prostitute. The\nprobation officer began to investigate and saw that the house where the girl\nhad been arrested was a location where other young girls consistently were\narrested. She began monitoring incoming police reports, spoke with some of\nthe girls, compiled a list of names and ages, and gathered information from\nother probation officers. Her investigation revealed common links among the\ngirls: Charles Fulton, Sr. and a residence on Avenue L. In February and early\nMarch 2015, the Galveston Police Department, in tandem with the FBI, began\nan investigation. Police discovered that Fulton acted as the girls’ pimp,\ndirecting them to prostitution dates; providing them with food, condoms,\nhousing, and drugs; and having sex with some of them as young as 15.\n In May 2016, Fulton was indicted in the United States District Court for\nthe Southern District of Texas on six counts of sex trafficking in violation of 18\nU.S.C. § 1591(a)–(b) (2015), with a different minor victim identified in each\ncount. Fulton was also charged with a seventh count for conspiracy to commit\nsex trafficking under 18 U.S.C. § 1594(c). He was found guilty after a jury trial\non four of the substantive counts and on the conspiracy count. The district\ncourt sentenced him to prison for concurrent life terms.\n\n\n DISCUSSION\n We will analyze four issues. First, Fulton asserts the district court\nadmitted evidence obtained from his cellphone in violation of the Fourth\nAmendment. Second, he argues the district court violated the Confrontation\nClause by prohibiting him from questioning one of the minor victims about a\npurported aggravated assault charge. Third, he argues that special findings\n 2\n\f Case: 17-41251 Document: 00515013555 Page: 3 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nmade by the jury in two of his counts of conviction were not supported by\nsufficient evidence. Finally, Fulton contends the district court violated the\nGrand Jury Clause by constructively amending the indictment. 1\n\n\nI. Search of Fulton’s phone\n In February 2015, Galveston police obtained a search warrant on the\nAvenue L house where the prostitution was based. The warrant, though, was\ndue to a separate investigation into Fulton’s narcotics activities. Fulton’s\ncellphone was seized. Nine days later, police obtained a second warrant to\nexamine its contents but were unable to bypass the phone’s security features.\nAround this same time, the FBI agent assisting with the Fulton sex-trafficking\ninvestigation learned that the Galveston police had the phone. The agent\nacquired it to determine if the FBI could access the phone’s data. Three weeks\nlater, that agent obtained a federal warrant to search the phone. Still, it took\na year before the data on the phone was accessed. The FBI discovered evidence\nthat helped piece together Fulton’s involvement with the minor victims.\nFulton moved to suppress the evidence, but the district court denied the\nmotion. At trial, the Government introduced evidence of the phone’s contents\nthrough the testimony of the FBI agent and of minor victims. The district court\nalso admitted evidence such as text messages, a photograph, and the results of\nsearches of the phone’s files, linking Fulton to five minor victims and revealing\nbehaviors consistent with sex trafficking.\n\n\n\n\n 1 At trial, Fulton also raised issues bearing on Jencks Act, Brady, and Giglio material.\nSee 18 U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405\nU.S. 150 (1972). At oral argument in this court he requested that we review the district\ncourt’s determinations on these issues. In his brief he mentioned his request for Brady\nmaterial and suggested we “review the propriety of the district court’s determinations.” We\nwill not consider such “passing reference[s]” that are devoid of legal analysis. Hollis v. Lynch,\n827 F.3d 436, 451 (5th Cir. 2016) (citation omitted).\n 3\n\f Case: 17-41251 Document: 00515013555 Page: 4 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\n On appeal, Fulton argues that the phone’s seizure in the February 2015\nraid violated the Fourth Amendment. He alternatively argues that even if the\ninitial seizure had been lawful, the nine-day delay in obtaining a warrant to\nsearch it was unconstitutional. At oral argument, Fulton’s counsel stated that\nthose two arguments are the limit of the objections to the search and seizure.\nThus, no issue is made about the FBI’s obtaining the phone, procuring its own\nsearch warrant, and finally accessing the data on the phone a year later.\n We review a ruling on a motion to suppress “in the light most favorable\nto the verdict,” accepting “the district court’s factual findings unless clearly\nerroneous or influenced by an incorrect view of the law” and reviewing\n“questions of law de novo.” United States v. Carrillo-Morales, 27 F.3d 1054,\n1060–61 (5th Cir. 1994). The disagreements here are ones of law. We review\nthe sufficiency of the warrant authorizing the seizure of Fulton’s phone de\nnovo. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We also\nreview the district court’s determination of the reasonableness of a search or\nseizure de novo. United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998).\n\n\n A. Whether the narcotics warrant authorized the phone’s seizure\n We start with whether the initial seizure of the phone was proper.\nFulton contends “the warrant did not particularly describe the phone as one of\nthe items to be seized.” The Constitution states that a warrant should not\nissue without “particularly describing” what is to be seized. U.S. CONST.\namend. IV. A warrant’s particularity is sufficient if “a reasonable officer would\nknow what items he is permitted to seize,” which does not mean all items\nauthorized to be taken must be specifically identified. United States v. Aguirre,\n664 F.3d 606, 614 (5th Cir. 2011). “We have upheld searches as valid under\nthe particularity requirement where a searched or seized item was not named\n\n\n 4\n\f Case: 17-41251 Document: 00515013555 Page: 5 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nin the warrant, either specifically or by type, but was the functional equivalent\nof other items that were adequately described.” Id.\n This narcotics warrant did not mention cellphones. The alleged\nequivalent was a reference to “ledgers,” which is a “book . . . ordinarily\nemployed for recording . . . transactions.” Ledger, OXFORD ENGLISH\nDICTIONARY (2d ed. 1989). The government argues that is enough, because\nthis court has held that a cellphone that is “used as a mode of both spoken and\nwritten communication and containing text messages and call logs, served as\nthe equivalent of records and documentation of sales or other drug activity.”\nAguirre, 664 F.3d at 615. In that precedent, a warrant permitted seizure of a\ncellphone when it referred to “personal assets including computers, disks,\nprinters and monitors utilized in the drug trafficking organization.” Id. at\n614–15. That is because what was seized were “the functional equivalents of\nseveral items listed” on the warrant. Id. at 615. We also held that if\nmeaningful particularity is not possible, “generic language suffices if it\nparticularizes the types of items to be seized.” Id. at 614 (quoting Williams v.\nKunze, 806 F.2d 594, 598 (5th Cir. 1986)).\n We do not see the same factors involved in the present case. There was\nnothing in the Galveston warrant suggesting that anything similar to\ncomputers or even electronics was to be seized. Moreover, the officer in this\ncase was a veteran of the Galveston Police Department’s narcotics unit, and he\nindicated at the suppression hearing that he knew cellphones are used in the\ndrug trade. Though a ledger can serve one of the myriad purposes of a\ncellphone, we do not extend the concept of “functional equivalency” to items so\ndifferent, particularly one as specific, distinguishable, and anticipatable as a\ncellphone.\n We now examine an exception to the exclusionary rule that nonetheless\nallows the introduction of the evidence from the phone.\n 5\n\f Case: 17-41251 Document: 00515013555 Page: 6 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\n B. Good faith\n An exception for good faith may allow the introduction of evidence\nunlawfully obtained “[w]hen police act under a warrant that is invalid for lack\nof probable cause.” Herring v. United States, 555 U.S. 135, 142 (2009). Here,\nof course, we have held the initial seizure of the phone to be invalid because,\nregardless of probable cause, the phone was not covered by the warrant.\n To constitute good faith, the “executing officer’s reliance on the\n[deficient] warrant [must be] objectively reasonable and made in good faith.”\nUnited States v. Massi, 761 F.3d 512, 525 (5th Cir. 2014) (citation omitted).\nThe Government argues the FBI agent’s reliance on the federal search warrant\nmeets these requirements. Fulton argues we should the good faith exception\nshould not apply “to situations where law enforcement unreasonably delays in\nobtaining a search warrant.” The district court refused to consider this\nexception because it held the phone and its contents to be admissible on other\ngrounds.\n In Massi, law enforcement officers prolonged a proper investigatory stop\nbased on reasonable suspicion well beyond the time permitted. Id. at 522–23.\nThe officers detained the suspects for several hours “until evidence could be\ncorroborated, an affidavit prepared, and the search warrant obtained.” Id. at\n523. We applied the following test to determine whether the invalid seizure of\nthe suspects while evidentiary justification for a warrant was developed would\nnonetheless allow the introduction of evidence that was later obtained:\n (1) the prior law enforcement conduct that uncovered evidence\n used in the affidavit for the warrant must be “close enough to the\n line of validity” that an objectively reasonable officer preparing the\n affidavit or executing the warrant would believe that the\n information supporting the warrant was not tainted by\n unconstitutional conduct, and (2) the resulting search warrant\n must have been sought and executed by a law enforcement officer\n in good faith.\n\n 6\n\f Case: 17-41251 Document: 00515013555 Page: 7 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nId. at 528.\n This same approach can be applied when, as here, the initial seizure of\nan object was without justification, but a later-obtained warrant led to the\ndiscovery of incriminating evidence.\n We have already discussed the events that followed the seizure of the\ncellphone. We conclude that viewed objectively, an FBI agent who obtained a\nsearch warrant in these circumstances would not have had reason to believe\nthe seizure and continued possession of the cellphone by the Galveston police\nwere unlawful. We so conclude because the question of whether the warrant\napplied to the cellphone does not lead to an easy negative answer, though that\nis the one we have given. Consequently, the seizure of the cellphone was “close\nenough to the line of validity” to permit the officer to prepare the second\nwarrant that led to the search of the cellphone. The federal search warrant\nwas “sought and executed by a law enforcement officer in good faith.” Id.\n The cellphone evidence obtained was properly admitted.\n\n\nII. Confrontation Clause violation regarding a witness\n Fulton argues he was improperly limited on the range of cross-\nexamination of a witness. The Government called Minor Victim 3 to testify.\nShe admitted that the FBI agent investigating the sex trafficking case sought\nher assistance and that she initially refused to help. She also admitted that\nshe later contacted the FBI agent after she was jailed apparently on state\ncharges. She changed her mind again later, resisted testifying, and appeared\nat trial only after being brought to court under a material-witness warrant.\n Fulton wanted to cross-examine her on what he understood to be an\naggravated assault arrest in her “juvenile history” to probe her motives for\ncontacting the FBI agent. Fulton sought to impeach her on the theory that she\ncontacted the FBI agent thinking he could help her “get off that aggravated\n 7\n\f Case: 17-41251 Document: 00515013555 Page: 8 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nassault charge.” There is no indication that any assault charge was related to\nFulton’s offense. The district court refused to let Fulton pursue this line of\nquestioning. Counsel was permitted to ask if “any member of law enforcement\noffered [her] any kind of . . . benefit in exchange for testifying.” Fulton argues\nthis restriction violated his Sixth Amendment right to confrontation.\n We review alleged Confrontation Clause violations de novo. United\nStates v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). We analyze “whether the\njury had sufficient information to appraise the bias and motives of the\nwitness.” United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010)\n(citation omitted). Fulton “need only show that ‘a reasonable jury might have\nreceived a significantly different impression of the witness’s credibility had\ndefense counsel been permitted to pursue his proposed line of cross-\nexamination.’” Id. (citation omitted). In the context of purported deals with\nthe Government, it does not matter whether an agreement was reached: “What\ncounts is whether the witness may be shading his testimony in an effort to\nplease the prosecution.” Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir.\n1981). At the same time, the Confrontation Clause does not permit a defendant\nto cross-examine a witness if there are sufficient concerns of “harassment,\nprejudice, confusion of the issues, the witness’ safety, or interrogation that is\nrepetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,\n679 (1986).\n Fulton relies primarily on Davis v. Alaska, 415 U.S. 308 (1974). The\ndefendant there was convicted in state court based on “crucial” testimony from\na juvenile who was on probation after having previously been adjudicated\ndelinquent in state court for two burglaries. Id. at 310–11. The defendant\nwanted to introduce the witness’s juvenile record for these reasons: the witness\nmay “have made a hasty and faulty identification of petitioner to shift\nsuspicion away from himself as one who [actually committed the crime, and\n 8\n\f Case: 17-41251 Document: 00515013555 Page: 9 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nthe witness] might have been subject to undue pressure from the police and\nmade his identifications under fear of possible probation revocation.” Id. at\n311. Instead of the juvenile record’s being admitted, the defendant was\nallowed to ask questions about the witness’s state of mind in cooperating with\nthe police. Id. at 311–13. This limitation violated the Confrontation Clause.\nId. at 318. Without the specificity of the juvenile record, jurors “might well\nhave thought that defense counsel was engaged in a speculative and baseless\nline of attack on the credibility of an apparently blameless witness.” Id.\n Fulton argues that Minor Victim 3 had reason to alter her testimony in\na federal prosecution in order to receive assistance in a state juvenile\nproceeding. We consider the fact that this witness’s prosecutions were by two\ndifferent sovereigns on two unrelated crimes to be critical. Davis is based on\nthe fact that state prosecutors had the ability and perhaps some reason to\ncharge that witness with the same offense and perhaps also could have affected\nhis state probation on two other burglary offenses; the witness had ample\nmotivation for identifying a different culprit. Id. at 317–18. We see no reason\nto make such assumptions when the witness appeared in a federal court trial\nand the separate matter was in state court. “[N]othing in the record or\npleadings suggest[ed] that the federal prosecutor could have influenced any\nstate juvenile-court proceedings and thereby provided an inducement for the\nvictims to testify in the federal trial.” United States v. Miller, 538 F. App’x 501,\n501 (5th Cir. 2013) (citing United States v. Thorn, 917 F.2d 170, 176 (5th Cir.\n1990) (proper to limit cross-examination when there was no showing federal\nprosecutors could influence an unrelated state prosecution of a witness)).\n We conclude that Fulton has not shown that the witness had a reason to\nbe biased based on the unrelated offense. We also conclude that the effect of\nlimiting cross-examination of this witness was minimal, as ample other\n\n\n 9\n\f Case: 17-41251 Document: 00515013555 Page: 10 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nevidence existed of Fulton’s guilt of this offense. The district court did not err\nin not allowing Fulton to probe this witness about any state charge.\n\n\nIII. Sufficiency of evidence on special findings\n The statute of Fulton’s convictions on the substantive counts required\nthat he either knew or recklessly disregarded (1) “that means of force, threats\nof force, fraud, coercion . . . or any combination of such means will be used to\ncause the [victim] to engage in a commercial sex act” or (2) “that the [victim]\nhas not attained the age of 18 years and will be caused to engage in a\ncommercial sex act.” 18 U.S.C. § 1591(a) (2015). Fulton was convicted on four\nof these substantive counts. For two of them, Counts 2 and 7, the district court\ninstructed the jury to look only for the second of the two possible findings.\nConviction on those counts is not contested.\n On Counts 4 and 6, the district court instructed the jury that it could\nmake either finding. Accordingly, the jury entered special findings on Counts\n4 and 6 that Fulton “used force, threats of force, fraud or coercion” and “at the\ntime of the offense, the victim had attained the age of 14 years but had not\nattained the age of 18 years.” Fulton argues there was insufficient evidence\nfor the jury to find he “used force, threats of force, fraud or coercion” on these\ntwo counts.\n Fulton moved in the district court for a judgment of acquittal after the\nGovernment’s case-in-chief. He renewed the motion after his own case-in-\nchief. Consequently, we review his evidentiary sufficiency contentions de novo;\nthe analysis considers “all evidence in the light most favorable to the verdict”\nand asks “only whether the jury’s decision was rational, not whether it was\ncorrect.” United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014) (citations\nomitted).\n\n\n 10\n\f Case: 17-41251 Document: 00515013555 Page: 11 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\n There is evidence Fulton used force and threats with the minor victims\nassociated with Counts 4 and 6. There was testimony he threatened\nto “beat . . . up” one victim. He also hit the other victim because she was\nleaving him, making “a big handprint on [her] face.” That victim further\ntestified Fulton choked her for “talking to other guys.” There was also\ntestimony that Fulton emotionally and financially manipulated the victims so\nas to support a finding of coercion. See § 1591(e)(2), (e)(4) (2015).\n Even if this evidence were not sufficient, Fulton’s convictions would be\nunaffected. Either one of the special findings in Counts 4 and 6 supported a\nconviction under Section 1591(a). A finding of force, threats, fraud, or coercion\ncarried a minimum sentence of 15 years; a finding that the victim “had\nattained the age of 14 years but had not attained the age of 18 years” carried\na minimum sentence of 10 years. § 1591(b). Either finding carried a maximum\nsentence of life. Id. Even if we hold the findings of force, threats, fraud, or\ncoercion were not supported by sufficient evidence, it remains true the jury\nfound the victims to be younger than 18. That leaves Fulton guilty under\nCounts 4 and 6 with a maximum sentence of life, which he received for both.\nWe leave his convictions on Counts 4 and 6 undisturbed.\n\n\nIV. Grand Jury Clause violation\n The final issue concerns what is argued to be effectively an improper\namendment of the indictment concerning Fulton’s knowledge of the age of his\nvictims. Section 1591(a) permits the Government to convict a defendant on\nalternative theories. For one of the theories, the Government is not required\nto prove that the defendant “knew, or recklessly disregarded the fact, that the\nperson had not attained the age of 18 years.” § 1591(c). Instead, the evidence\nonly has to prove that “the defendant had a reasonable opportunity to observe\n\n\n 11\n\f Case: 17-41251 Document: 00515013555 Page: 12 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\nthe” victim. Id. Fulton’s indictment does not mention this “reasonable\nopportunity to observe” concept.\n Fulton argues on appeal that the district court imported this concept\ninto the case by giving this jury instruction: “If the Government proves beyond\na reasonable doubt that the defendant had a reasonable opportunity to observe\nthe [alleged victims] . . . then the government does not have to prove that the\ndefendant knew that the person had not attained the age of 18 years.” Fulton\nargues this instruction allowed the jury to convict on a basis broader than that\nstated by the indictment. He did not make this argument in district court.\n Our analysis starts with the special role of indictments under our\nConstitution: “No person shall be held to answer for a capital, or otherwise\ninfamous crime, unless on a presentment or indictment of a Grand Jury.” U.S.\nCONST. amend V. A district court errs by “permit[ting] the defendant to be\nconvicted upon a factual basis that effectively modifies an essential element of\nthe offense charged or permits the government to convict [a] defendant on a\nmaterially different theory or set of facts than that with which she was\ncharged.” United States v. Thompson, 647 F.3d 180, 184 (5th Cir. 2011)\n(citation omitted).\n In one precedent we discussed the exact issue presented by Fulton.\nThere, an indictment charged two defendants under Subsections 1591(a) and\n(b)(2) “but did not include the ‘reasonable opportunity’ language found in\n[S]ubsection (c).” United States v. Lockhart, 844 F.3d 501, 515 (5th Cir. 2016).\nAs here, the district court instructed the jury using Subsection (c) language.\nId. We held “the district court materially modified an essential element of the\nindictment by transforming the offense . . . the indictment charged . . . from\none requiring a specific mens rea into a strict liability offense.” Id. at 515–16\n(emphasis added).\n\n\n 12\n\f Case: 17-41251 Document: 00515013555 Page: 13 Date Filed: 06/27/2019\n\n\n\n No. 17-41251\n That error caused us to reverse the judgment of conviction of one\ndefendant but not of the other. Id. at 516. Prejudice need not be shown if a\ntimely objection is made in the district court to the violation of the right to be\ntried only by a properly issued indictment; only one of the two Lockhart\ndefendants objected. Id. at 515–16, 515 n.3. His was the judgment of\nconviction we vacated. Id.\n His codefendant did not object to the broadening of the indictment, and\nwe reviewed his conviction for plain error. Id. at 515 n.3. We will reverse a\nconviction for plain error only when: “(1) [the instruction] was erroneous; (2)\nthe error was plain; and (3) the plain error affected the substantial rights of\nthe defendant.” United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001).\nEven if those requirements are met, we will exercise discretion to reverse the\ndistrict court only if “the error ‘seriously affect[s] the fairness, integrity or\npublic reputation of judicial proceedings.’” Id. (citation omitted). We held in\nLockhart that regardless of the first three factors of plain error review, we\nwould decline to exercise our discretion to reverse because of the “substantial\nevidence against” the defendant. Lockhart, 844 F. 3d at 515 n.3.\n The evidence against Fulton was also “substantial,” and we refuse to\nvacate his convictions based on the jury instruction.\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Charles Devan FULTON, Sr., Also Known as Black, Also Known as Blacc, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-41251 Document: 00515013555 Page: 1 Date Filed: 06/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-41251 FILED\\n June 27, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nCHARLES DEVAN FULTON, SR., also known as Black, also known as Blacc,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\n ON PETITION FOR REHEARING\\n\\n\\nBefore WIENER, SOUTHWICK, and COSTA, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n The petition for rehearing is DENIED. The court’s prior opinion is\\nwithdrawn, and this opinion is substituted.\\n A jury convicted Charles Fulton, Sr. on four counts of sex trafficking and\\none count of conspiracy. The most significant issue concerns a long-delayed\\nsearch of his cellphone. Fulton also makes arguments drawn from the\\nConfrontation and Grand Jury clauses of the Constitution, and he challenges\\nthe sufficiency of the evidence. We AFFIRM.\\n\\f Case: 17-41251 Document: 00515013555 Page: 2 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n FACTUAL AND PROCEDURAL BACKGROUND\\n In October 2014, a Galveston juvenile probation officer learned from the\\nfather of a juvenile she supervised that the girl was pictured in an online\\nadvertisement offering her services as an “escort” – in effect, a prostitute. The\\nprobation officer began to investigate and saw that the house where the girl\\nhad been arrested was a location where other young girls consistently were\\narrested. She began monitoring incoming police reports, spoke with some of\\nthe girls, compiled a list of names and ages, and gathered information from\\nother probation officers. Her investigation revealed common links among the\\ngirls: Charles Fulton, Sr. and a residence on Avenue L. In February and early\\nMarch 2015, the Galveston Police Department, in tandem with the FBI, began\\nan investigation. Police discovered that Fulton acted as the girls’ pimp,\\ndirecting them to prostitution dates; providing them with food, condoms,\\nhousing, and drugs; and having sex with some of them as young as 15.\\n In May 2016, Fulton was indicted in the United States District Court for\\nthe Southern District of Texas on six counts of sex trafficking in violation of 18\\nU.S.C. § 1591(a)–(b) (2015), with a different minor victim identified in each\\ncount. Fulton was also charged with a seventh count for conspiracy to commit\\nsex trafficking under 18 U.S.C. § 1594(c). He was found guilty after a jury trial\\non four of the substantive counts and on the conspiracy count. The district\\ncourt sentenced him to prison for concurrent life terms.\\n\\n\\n DISCUSSION\\n We will analyze four issues. First, Fulton asserts the district court\\nadmitted evidence obtained from his cellphone in violation of the Fourth\\nAmendment. Second, he argues the district court violated the Confrontation\\nClause by prohibiting him from questioning one of the minor victims about a\\npurported aggravated assault charge. Third, he argues that special findings\\n 2\\n\\f Case: 17-41251 Document: 00515013555 Page: 3 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nmade by the jury in two of his counts of conviction were not supported by\\nsufficient evidence. Finally, Fulton contends the district court violated the\\nGrand Jury Clause by constructively amending the indictment. 1\\n\\n\\nI. Search of Fulton’s phone\\n In February 2015, Galveston police obtained a search warrant on the\\nAvenue L house where the prostitution was based. The warrant, though, was\\ndue to a separate investigation into Fulton’s narcotics activities. Fulton’s\\ncellphone was seized. Nine days later, police obtained a second warrant to\\nexamine its contents but were unable to bypass the phone’s security features.\\nAround this same time, the FBI agent assisting with the Fulton sex-trafficking\\ninvestigation learned that the Galveston police had the phone. The agent\\nacquired it to determine if the FBI could access the phone’s data. Three weeks\\nlater, that agent obtained a federal warrant to search the phone. Still, it took\\na year before the data on the phone was accessed. The FBI discovered evidence\\nthat helped piece together Fulton’s involvement with the minor victims.\\nFulton moved to suppress the evidence, but the district court denied the\\nmotion. At trial, the Government introduced evidence of the phone’s contents\\nthrough the testimony of the FBI agent and of minor victims. The district court\\nalso admitted evidence such as text messages, a photograph, and the results of\\nsearches of the phone’s files, linking Fulton to five minor victims and revealing\\nbehaviors consistent with sex trafficking.\\n\\n\\n\\n\\n 1 At trial, Fulton also raised issues bearing on Jencks Act, Brady, and Giglio material.\\nSee 18 U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405\\nU.S. 150 (1972). At oral argument in this court he requested that we review the district\\ncourt’s determinations on these issues. In his brief he mentioned his request for Brady\\nmaterial and suggested we “review the propriety of the district court’s determinations.” We\\nwill not consider such “passing reference[s]” that are devoid of legal analysis. Hollis v. Lynch,\\n827 F.3d 436, 451 (5th Cir. 2016) (citation omitted).\\n 3\\n\\f Case: 17-41251 Document: 00515013555 Page: 4 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n On appeal, Fulton argues that the phone’s seizure in the February 2015\\nraid violated the Fourth Amendment. He alternatively argues that even if the\\ninitial seizure had been lawful, the nine-day delay in obtaining a warrant to\\nsearch it was unconstitutional. At oral argument, Fulton’s counsel stated that\\nthose two arguments are the limit of the objections to the search and seizure.\\nThus, no issue is made about the FBI’s obtaining the phone, procuring its own\\nsearch warrant, and finally accessing the data on the phone a year later.\\n We review a ruling on a motion to suppress “in the light most favorable\\nto the verdict,” accepting “the district court’s factual findings unless clearly\\nerroneous or influenced by an incorrect view of the law” and reviewing\\n“questions of law de novo.” United States v. Carrillo-Morales, 27 F.3d 1054,\\n1060–61 (5th Cir. 1994). The disagreements here are ones of law. We review\\nthe sufficiency of the warrant authorizing the seizure of Fulton’s phone de\\nnovo. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We also\\nreview the district court’s determination of the reasonableness of a search or\\nseizure de novo. United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998).\\n\\n\\n A. Whether the narcotics warrant authorized the phone’s seizure\\n We start with whether the initial seizure of the phone was proper.\\nFulton contends “the warrant did not particularly describe the phone as one of\\nthe items to be seized.” The Constitution states that a warrant should not\\nissue without “particularly describing” what is to be seized. U.S. CONST.\\namend. IV. A warrant’s particularity is sufficient if “a reasonable officer would\\nknow what items he is permitted to seize,” which does not mean all items\\nauthorized to be taken must be specifically identified. United States v. Aguirre,\\n664 F.3d 606, 614 (5th Cir. 2011). “We have upheld searches as valid under\\nthe particularity requirement where a searched or seized item was not named\\n\\n\\n 4\\n\\f Case: 17-41251 Document: 00515013555 Page: 5 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nin the warrant, either specifically or by type, but was the functional equivalent\\nof other items that were adequately described.” Id.\\n This narcotics warrant did not mention cellphones. The alleged\\nequivalent was a reference to “ledgers,” which is a “book . . . ordinarily\\nemployed for recording . . . transactions.” Ledger, OXFORD ENGLISH\\nDICTIONARY (2d ed. 1989). The government argues that is enough, because\\nthis court has held that a cellphone that is “used as a mode of both spoken and\\nwritten communication and containing text messages and call logs, served as\\nthe equivalent of records and documentation of sales or other drug activity.”\\nAguirre, 664 F.3d at 615. In that precedent, a warrant permitted seizure of a\\ncellphone when it referred to “personal assets including computers, disks,\\nprinters and monitors utilized in the drug trafficking organization.” Id. at\\n614–15. That is because what was seized were “the functional equivalents of\\nseveral items listed” on the warrant. Id. at 615. We also held that if\\nmeaningful particularity is not possible, “generic language suffices if it\\nparticularizes the types of items to be seized.” Id. at 614 (quoting Williams v.\\nKunze, 806 F.2d 594, 598 (5th Cir. 1986)).\\n We do not see the same factors involved in the present case. There was\\nnothing in the Galveston warrant suggesting that anything similar to\\ncomputers or even electronics was to be seized. Moreover, the officer in this\\ncase was a veteran of the Galveston Police Department’s narcotics unit, and he\\nindicated at the suppression hearing that he knew cellphones are used in the\\ndrug trade. Though a ledger can serve one of the myriad purposes of a\\ncellphone, we do not extend the concept of “functional equivalency” to items so\\ndifferent, particularly one as specific, distinguishable, and anticipatable as a\\ncellphone.\\n We now examine an exception to the exclusionary rule that nonetheless\\nallows the introduction of the evidence from the phone.\\n 5\\n\\f Case: 17-41251 Document: 00515013555 Page: 6 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n B. Good faith\\n An exception for good faith may allow the introduction of evidence\\nunlawfully obtained “[w]hen police act under a warrant that is invalid for lack\\nof probable cause.” Herring v. United States, 555 U.S. 135, 142 (2009). Here,\\nof course, we have held the initial seizure of the phone to be invalid because,\\nregardless of probable cause, the phone was not covered by the warrant.\\n To constitute good faith, the “executing officer’s reliance on the\\n[deficient] warrant [must be] objectively reasonable and made in good faith.”\\nUnited States v. Massi, 761 F.3d 512, 525 (5th Cir. 2014) (citation omitted).\\nThe Government argues the FBI agent’s reliance on the federal search warrant\\nmeets these requirements. Fulton argues we should the good faith exception\\nshould not apply “to situations where law enforcement unreasonably delays in\\nobtaining a search warrant.” The district court refused to consider this\\nexception because it held the phone and its contents to be admissible on other\\ngrounds.\\n In Massi, law enforcement officers prolonged a proper investigatory stop\\nbased on reasonable suspicion well beyond the time permitted. Id. at 522–23.\\nThe officers detained the suspects for several hours “until evidence could be\\ncorroborated, an affidavit prepared, and the search warrant obtained.” Id. at\\n523. We applied the following test to determine whether the invalid seizure of\\nthe suspects while evidentiary justification for a warrant was developed would\\nnonetheless allow the introduction of evidence that was later obtained:\\n (1) the prior law enforcement conduct that uncovered evidence\\n used in the affidavit for the warrant must be “close enough to the\\n line of validity” that an objectively reasonable officer preparing the\\n affidavit or executing the warrant would believe that the\\n information supporting the warrant was not tainted by\\n unconstitutional conduct, and (2) the resulting search warrant\\n must have been sought and executed by a law enforcement officer\\n in good faith.\\n\\n 6\\n\\f Case: 17-41251 Document: 00515013555 Page: 7 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nId. at 528.\\n This same approach can be applied when, as here, the initial seizure of\\nan object was without justification, but a later-obtained warrant led to the\\ndiscovery of incriminating evidence.\\n We have already discussed the events that followed the seizure of the\\ncellphone. We conclude that viewed objectively, an FBI agent who obtained a\\nsearch warrant in these circumstances would not have had reason to believe\\nthe seizure and continued possession of the cellphone by the Galveston police\\nwere unlawful. We so conclude because the question of whether the warrant\\napplied to the cellphone does not lead to an easy negative answer, though that\\nis the one we have given. Consequently, the seizure of the cellphone was “close\\nenough to the line of validity” to permit the officer to prepare the second\\nwarrant that led to the search of the cellphone. The federal search warrant\\nwas “sought and executed by a law enforcement officer in good faith.” Id.\\n The cellphone evidence obtained was properly admitted.\\n\\n\\nII. Confrontation Clause violation regarding a witness\\n Fulton argues he was improperly limited on the range of cross-\\nexamination of a witness. The Government called Minor Victim 3 to testify.\\nShe admitted that the FBI agent investigating the sex trafficking case sought\\nher assistance and that she initially refused to help. She also admitted that\\nshe later contacted the FBI agent after she was jailed apparently on state\\ncharges. She changed her mind again later, resisted testifying, and appeared\\nat trial only after being brought to court under a material-witness warrant.\\n Fulton wanted to cross-examine her on what he understood to be an\\naggravated assault arrest in her “juvenile history” to probe her motives for\\ncontacting the FBI agent. Fulton sought to impeach her on the theory that she\\ncontacted the FBI agent thinking he could help her “get off that aggravated\\n 7\\n\\f Case: 17-41251 Document: 00515013555 Page: 8 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nassault charge.” There is no indication that any assault charge was related to\\nFulton’s offense. The district court refused to let Fulton pursue this line of\\nquestioning. Counsel was permitted to ask if “any member of law enforcement\\noffered [her] any kind of . . . benefit in exchange for testifying.” Fulton argues\\nthis restriction violated his Sixth Amendment right to confrontation.\\n We review alleged Confrontation Clause violations de novo. United\\nStates v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). We analyze “whether the\\njury had sufficient information to appraise the bias and motives of the\\nwitness.” United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010)\\n(citation omitted). Fulton “need only show that ‘a reasonable jury might have\\nreceived a significantly different impression of the witness’s credibility had\\ndefense counsel been permitted to pursue his proposed line of cross-\\nexamination.’” Id. (citation omitted). In the context of purported deals with\\nthe Government, it does not matter whether an agreement was reached: “What\\ncounts is whether the witness may be shading his testimony in an effort to\\nplease the prosecution.” Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir.\\n1981). At the same time, the Confrontation Clause does not permit a defendant\\nto cross-examine a witness if there are sufficient concerns of “harassment,\\nprejudice, confusion of the issues, the witness’ safety, or interrogation that is\\nrepetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,\\n679 (1986).\\n Fulton relies primarily on Davis v. Alaska, 415 U.S. 308 (1974). The\\ndefendant there was convicted in state court based on “crucial” testimony from\\na juvenile who was on probation after having previously been adjudicated\\ndelinquent in state court for two burglaries. Id. at 310–11. The defendant\\nwanted to introduce the witness’s juvenile record for these reasons: the witness\\nmay “have made a hasty and faulty identification of petitioner to shift\\nsuspicion away from himself as one who [actually committed the crime, and\\n 8\\n\\f Case: 17-41251 Document: 00515013555 Page: 9 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nthe witness] might have been subject to undue pressure from the police and\\nmade his identifications under fear of possible probation revocation.” Id. at\\n311. Instead of the juvenile record’s being admitted, the defendant was\\nallowed to ask questions about the witness’s state of mind in cooperating with\\nthe police. Id. at 311–13. This limitation violated the Confrontation Clause.\\nId. at 318. Without the specificity of the juvenile record, jurors “might well\\nhave thought that defense counsel was engaged in a speculative and baseless\\nline of attack on the credibility of an apparently blameless witness.” Id.\\n Fulton argues that Minor Victim 3 had reason to alter her testimony in\\na federal prosecution in order to receive assistance in a state juvenile\\nproceeding. We consider the fact that this witness’s prosecutions were by two\\ndifferent sovereigns on two unrelated crimes to be critical. Davis is based on\\nthe fact that state prosecutors had the ability and perhaps some reason to\\ncharge that witness with the same offense and perhaps also could have affected\\nhis state probation on two other burglary offenses; the witness had ample\\nmotivation for identifying a different culprit. Id. at 317–18. We see no reason\\nto make such assumptions when the witness appeared in a federal court trial\\nand the separate matter was in state court. “[N]othing in the record or\\npleadings suggest[ed] that the federal prosecutor could have influenced any\\nstate juvenile-court proceedings and thereby provided an inducement for the\\nvictims to testify in the federal trial.” United States v. Miller, 538 F. App’x 501,\\n501 (5th Cir. 2013) (citing United States v. Thorn, 917 F.2d 170, 176 (5th Cir.\\n1990) (proper to limit cross-examination when there was no showing federal\\nprosecutors could influence an unrelated state prosecution of a witness)).\\n We conclude that Fulton has not shown that the witness had a reason to\\nbe biased based on the unrelated offense. We also conclude that the effect of\\nlimiting cross-examination of this witness was minimal, as ample other\\n\\n\\n 9\\n\\f Case: 17-41251 Document: 00515013555 Page: 10 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nevidence existed of Fulton’s guilt of this offense. The district court did not err\\nin not allowing Fulton to probe this witness about any state charge.\\n\\n\\nIII. Sufficiency of evidence on special findings\\n The statute of Fulton’s convictions on the substantive counts required\\nthat he either knew or recklessly disregarded (1) “that means of force, threats\\nof force, fraud, coercion . . . or any combination of such means will be used to\\ncause the [victim] to engage in a commercial sex act” or (2) “that the [victim]\\nhas not attained the age of 18 years and will be caused to engage in a\\ncommercial sex act.” 18 U.S.C. § 1591(a) (2015). Fulton was convicted on four\\nof these substantive counts. For two of them, Counts 2 and 7, the district court\\ninstructed the jury to look only for the second of the two possible findings.\\nConviction on those counts is not contested.\\n On Counts 4 and 6, the district court instructed the jury that it could\\nmake either finding. Accordingly, the jury entered special findings on Counts\\n4 and 6 that Fulton “used force, threats of force, fraud or coercion” and “at the\\ntime of the offense, the victim had attained the age of 14 years but had not\\nattained the age of 18 years.” Fulton argues there was insufficient evidence\\nfor the jury to find he “used force, threats of force, fraud or coercion” on these\\ntwo counts.\\n Fulton moved in the district court for a judgment of acquittal after the\\nGovernment’s case-in-chief. He renewed the motion after his own case-in-\\nchief. Consequently, we review his evidentiary sufficiency contentions de novo;\\nthe analysis considers “all evidence in the light most favorable to the verdict”\\nand asks “only whether the jury’s decision was rational, not whether it was\\ncorrect.” United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014) (citations\\nomitted).\\n\\n\\n 10\\n\\f Case: 17-41251 Document: 00515013555 Page: 11 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n There is evidence Fulton used force and threats with the minor victims\\nassociated with Counts 4 and 6. There was testimony he threatened\\nto “beat . . . up” one victim. He also hit the other victim because she was\\nleaving him, making “a big handprint on [her] face.” That victim further\\ntestified Fulton choked her for “talking to other guys.” There was also\\ntestimony that Fulton emotionally and financially manipulated the victims so\\nas to support a finding of coercion. See § 1591(e)(2), (e)(4) (2015).\\n Even if this evidence were not sufficient, Fulton’s convictions would be\\nunaffected. Either one of the special findings in Counts 4 and 6 supported a\\nconviction under Section 1591(a). A finding of force, threats, fraud, or coercion\\ncarried a minimum sentence of 15 years; a finding that the victim “had\\nattained the age of 14 years but had not attained the age of 18 years” carried\\na minimum sentence of 10 years. § 1591(b). Either finding carried a maximum\\nsentence of life. Id. Even if we hold the findings of force, threats, fraud, or\\ncoercion were not supported by sufficient evidence, it remains true the jury\\nfound the victims to be younger than 18. That leaves Fulton guilty under\\nCounts 4 and 6 with a maximum sentence of life, which he received for both.\\nWe leave his convictions on Counts 4 and 6 undisturbed.\\n\\n\\nIV. Grand Jury Clause violation\\n The final issue concerns what is argued to be effectively an improper\\namendment of the indictment concerning Fulton’s knowledge of the age of his\\nvictims. Section 1591(a) permits the Government to convict a defendant on\\nalternative theories. For one of the theories, the Government is not required\\nto prove that the defendant “knew, or recklessly disregarded the fact, that the\\nperson had not attained the age of 18 years.” § 1591(c). Instead, the evidence\\nonly has to prove that “the defendant had a reasonable opportunity to observe\\n\\n\\n 11\\n\\f Case: 17-41251 Document: 00515013555 Page: 12 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\nthe” victim. Id. Fulton’s indictment does not mention this “reasonable\\nopportunity to observe” concept.\\n Fulton argues on appeal that the district court imported this concept\\ninto the case by giving this jury instruction: “If the Government proves beyond\\na reasonable doubt that the defendant had a reasonable opportunity to observe\\nthe [alleged victims] . . . then the government does not have to prove that the\\ndefendant knew that the person had not attained the age of 18 years.” Fulton\\nargues this instruction allowed the jury to convict on a basis broader than that\\nstated by the indictment. He did not make this argument in district court.\\n Our analysis starts with the special role of indictments under our\\nConstitution: “No person shall be held to answer for a capital, or otherwise\\ninfamous crime, unless on a presentment or indictment of a Grand Jury.” U.S.\\nCONST. amend V. A district court errs by “permit[ting] the defendant to be\\nconvicted upon a factual basis that effectively modifies an essential element of\\nthe offense charged or permits the government to convict [a] defendant on a\\nmaterially different theory or set of facts than that with which she was\\ncharged.” United States v. Thompson, 647 F.3d 180, 184 (5th Cir. 2011)\\n(citation omitted).\\n In one precedent we discussed the exact issue presented by Fulton.\\nThere, an indictment charged two defendants under Subsections 1591(a) and\\n(b)(2) “but did not include the ‘reasonable opportunity’ language found in\\n[S]ubsection (c).” United States v. Lockhart, 844 F.3d 501, 515 (5th Cir. 2016).\\nAs here, the district court instructed the jury using Subsection (c) language.\\nId. We held “the district court materially modified an essential element of the\\nindictment by transforming the offense . . . the indictment charged . . . from\\none requiring a specific mens rea into a strict liability offense.” Id. at 515–16\\n(emphasis added).\\n\\n\\n 12\\n\\f Case: 17-41251 Document: 00515013555 Page: 13 Date Filed: 06/27/2019\\n\\n\\n\\n No. 17-41251\\n That error caused us to reverse the judgment of conviction of one\\ndefendant but not of the other. Id. at 516. Prejudice need not be shown if a\\ntimely objection is made in the district court to the violation of the right to be\\ntried only by a properly issued indictment; only one of the two Lockhart\\ndefendants objected. Id. at 515–16, 515 n.3. His was the judgment of\\nconviction we vacated. Id.\\n His codefendant did not object to the broadening of the indictment, and\\nwe reviewed his conviction for plain error. Id. at 515 n.3. We will reverse a\\nconviction for plain error only when: “(1) [the instruction] was erroneous; (2)\\nthe error was plain; and (3) the plain error affected the substantial rights of\\nthe defendant.” United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001).\\nEven if those requirements are met, we will exercise discretion to reverse the\\ndistrict court only if “the error ‘seriously affect[s] the fairness, integrity or\\npublic reputation of judicial proceedings.’” Id. (citation omitted). We held in\\nLockhart that regardless of the first three factors of plain error review, we\\nwould decline to exercise our discretion to reverse because of the “substantial\\nevidence against” the defendant. Lockhart, 844 F. 3d at 515 n.3.\\n The evidence against Fulton was also “substantial,” and we refuse to\\nvacate his convictions based on the jury instruction.\\n AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2475,"cells":{"id":{"kind":"number","value":4634852,"string":"4,634,852"},"name":{"kind":"string","value":"Oscar Ernesto MELENDEZ, Plaintiff-Appellant v. Kevin K. MCALEENAN, Acting Secretary, U.S. Department of Homeland Security; Lee Cissna, United States Citizenship and Immigration Services Director; Mark Siegl, Field Office Director, Defendants-Appellees"},"name_abbreviation":{"kind":"string","value":"Oscar Melendez v. Kevin McAleenan, Acting Secy, et"},"decision_date":{"kind":"string","value":"2019-06-27"},"docket_number":{"kind":"string","value":"18-20341"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Barksdale, Southwick, Haynes\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20341 Document: 00515013200 Page: 1 Date Filed: 06/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-20341 FILED\\n June 27, 2019\\n Lyle W. Cayce\\nOSCAR ERNESTO MELENDEZ, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nKEVIN K. MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF\\nHOMELAND SECURITY; LEE CISSNA, United States Citizenship and\\nImmigration Services Director; MARK SIEGL, Field Office Director,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n Oscar Ernesto Melendez filed suit seeking a declaratory judgment that\\nthe Department of Homeland Security had improperly denied his application\\nto adjust his status to that of a legal permanent resident. The district court\\ndismissed his complaint for lack of jurisdiction. The government now concedes\\nthere was jurisdiction but urges we deny relief. Though there is jurisdiction,\\nMelendez benefits little because we also conclude he did not state a legally\\ncognizable claim. The district court’s ruling is VACATED, and the complaint\\nis DISMISSED.\\n\\f Case: 18-20341 Document: 00515013200 Page: 2 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n FACTS AND PROCEDURAL HISTORY\\n Melendez, a native and citizen of El Salvador, entered the United States\\nin February 2000 on a one-month nonimmigrant visitor visa. Melendez did not\\nleave the United States after one month or at any later time either. In March\\n2001, the Attorney General designated El Salvador for Temporary Protected\\nStatus (“TPS”). As long as El Salvador is so designated, the special status for\\nMelendez continues. See United States v. Orellana, 405 F.3d 360, 366 (5th Cir.\\n2005). Melendez filed for TPS in August 2001 and had it granted, but the\\nrecord does not show the date of its grant. From the expiration of his visa in\\nMarch 2000 to the award of TPS sometime in late 2001, Melendez was an alien\\nunlawfully present in the United States.\\n We do not have the documentation, but Melendez states (and the\\ngovernment does not dispute) that he has an approved I-130 Petition for Alien\\nRelative filed by his United States citizen brother, and that his visa priority\\ndate is in 2003. In July 2016, Melendez filed a Form I-485 with the United\\nStates Citizenship and Immigration Services (“USCIS”) seeking adjustment of\\nhis status to that of a lawful permanent resident and stated that an immigrant\\nvisa was immediately available. See 8 U.S.C. § 1255(a). USCIS denied his\\napplication in September 2017. It determined he could not adjust his status\\nbecause from the date his visitor visa expired, March 2000, until his filing for\\nTPS, August 2001, Melendez was not lawfully present in the United States.\\n In November 2017, Melendez filed suit in the United States District\\nCourt for the Southern District of Texas against the Secretary of the\\nDepartment of Homeland Security (“DHS”) and two individuals in their official\\ncapacities with USCIS. To be clear, this suit does not concern Melendez’s\\nimminent removal from the United States. He seeks a declaratory judgment\\nthat USCIS erred in its denial of his adjustment application. Melendez\\nclaimed both general federal question jurisdiction under 28 U.S.C. § 1331 and\\n 2\\n\\f Case: 18-20341 Document: 00515013200 Page: 3 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\na right to sue under the Administrative Procedure Act, 5 U.S.C. §§ 701-706.\\nThe district court granted the government’s motion to dismiss for lack of\\njurisdiction. Melendez timely appealed.\\n\\n\\n DISCUSSION\\n I. Absence of Jurisdiction and Failure to State a Claim\\n The government moved for dismissal based on an absence of jurisdiction\\nunder Federal Rule of Civil Procedure 12(b)(1) and alternatively for failure to\\nstate a claim under Rule 12(b)(6). The district court held it lacked jurisdiction\\ndue to 8 U.S.C. § 1252(a)(2)(B)(i) and did not reach the merits question.\\nSection 1252(a)(2)(B)(i) strips federal courts of jurisdiction to review “any\\njudgment regarding the granting of relief under,” among others, Section 1255,\\nwhich is the statute applicable to an adjustment of status. On appeal, the\\ngovernment abandons the argument that there is no jurisdiction,\\nacknowledging one of our decisions in which we held the bar to reviewing a\\n“judgment regarding the granting of relief” applies only to discretionary\\ndecisions. Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215-16 (5th Cir. 2003). A\\ndecision as to “whether an alien satisfies the continuous presence requirement\\nis a nondiscretionary determination.” Id. at 217. We hold, then, that the denial\\nof Melendez’s adjustment application was a nondiscretionary decision based\\non the finding he was statutorily ineligible, making Section 1252(a)(2)(B)(i)’s\\njurisdictional bar inapplicable.\\n On appeal, the government again argues Melendez fails to state a claim\\nand that we should affirm the dismissal of his complaint. Though the only\\nruling by the district court was based on jurisdiction, “[w]e are free to uphold\\nthe . . . judgment on any basis that is supported by the record.” Zuspann v.\\nBrown, 60 F.3d 1156, 1160 (5th Cir. 1995). We now turn to whether Melendez\\nhas stated a claim.\\n 3\\n\\f Case: 18-20341 Document: 00515013200 Page: 4 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n Had the district court relied on this basis to dismiss, we would review de\\nnovo. Mowbray v. Cameron Cnty., 274 F.3d 269, 276 (5th Cir. 2001). That\\nnecessarily also is our standard when, as here, the district court did not reach\\nthe issue and dismissed on a ground we do not accept. Melendez must have\\nalleged “enough facts to state a claim to relief that is plausible on its face.” Bell\\nAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also FED. R. CIV. P.\\n12(b)(6). In evaluating claims, we accept all well-pled facts as true and view\\nall facts in the light most favorable to the plaintiff. Doe ex rel. Magee v.\\nCovington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en\\nbanc). We do not give any weight to either party’s legal conclusions. Ashcroft\\nv. Iqbal, 556 U.S. 662, 678 (2009). We are not concerned with whether a\\nplaintiff will succeed but only with whether the complaint states a plausible,\\nlegally cognizable claim. Doe ex rel. Magee, 675 F.3d at 854.\\n Melendez’s claim is that he is entitled to adjust status despite\\nundisputed facts that the government argues make him ineligible. Thus, the\\nissue under Rule 12(b)(6) is one of law. To adjust status, an alien must (1) have\\nbeen “inspected and admitted or paroled into the United States;” (2) “ma[de]\\nan application for . . . adjustment [of status];” (3) be “eligible to receive an\\nimmigrant visa and [be] admissible to the United States for permanent\\nresidence;” and (4) have “an immigrant visa . . . immediately available to him\\nat the time [the] application is filed.” 8 U.S.C. § 1255(a).\\n Section 1255(c) lists those who are barred from eligibility for adjustment\\nof status, including “an alien (other than an immediate relative as defined in\\nsection 1151(b) . . .) . . . who has failed (other than through no fault of his own\\nor for technical reasons) to maintain continuously a lawful status since entry\\ninto the United States.” 8 U.S.C. § 1255(c)(2). It is clear that between the date\\nMelendez began his visa overstay and at least the date he filed for TPS, he was\\nnot in lawful status. Also clear is that the two caveats in Section 1255(c) that\\n 4\\n\\f Case: 18-20341 Document: 00515013200 Page: 5 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\nwe just quoted are inapplicable. The first applies to an alien who is “an\\nimmediate relative,” defined as “the children, spouses, and parents of a citizen\\nof the United States.” 8 U.S.C. § 1151(b)(2)(A)(i). Melendez’s brother is the\\nrelative. The second applies if a failure to maintain continuous lawful status\\nafter entry was not the petitioner’s fault. See 8 C.F.R. § 1245.1(d)(2). No facts\\nfor that here.\\n Therefore, Melendez’s suit can survive a motion to dismiss for failure to\\nstate a claim only if the grant of TPS itself removed the ineligibility based on\\nhis earlier unlawful status. That is his argument, which we now review.\\n\\n\\n II. Temporary Protected Status\\n Melendez first recognizes that he is a beneficiary of the rights that flow\\nfrom the Attorney General’s designating El Salvador as a foreign state “unable,\\ntemporarily, to handle adequately the return” of its nationals after a series of\\nearthquakes in early 2001. See 8 U.S.C. 1254a(b)(1)(B); Designation of El\\nSalvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214,\\n14,214 (Mar. 9, 2001); Termination of the Designation of El Salvador for\\nTemporary Protected Status, 83 Fed. Reg. 2,654, 2,655 (Jan. 18, 2018). Second,\\nhe acknowledges that generally, in order to receive an adjustment of status, an\\nalien must “maintain continuously a lawful status since entry into the United\\nStates.” 8 U.S.C. § 1255(c)(2). Melendez has not done so, as he overstayed the\\nvisa that permitted his entry in 2000. Nonetheless, he argues that Congress\\nhas eliminated that requirement for those who have been granted TPS.\\n This contention is based on the following statutory subsection, entitled\\n“Benefits and status during period of temporary protected status;”\\n During a period in which an alien is granted temporary\\n protected status under this section--\\n (1) the alien shall not be considered to be permanently\\n residing in the United States under color of law;\\n 5\\n\\f Case: 18-20341 Document: 00515013200 Page: 6 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n (2) the alien may be deemed ineligible for public assistance\\n by a State . . . or any political subdivision thereof which furnishes\\n such assistance;\\n (3) the alien may travel abroad with the prior consent of the\\n Attorney General; and\\n (4) for purposes of adjustment of status under section 1255\\n of this title and change of status under section 1258 of this title,\\n the alien shall be considered as being in, and maintaining, lawful\\n status as a nonimmigrant.\\n8 U.S.C. § 1254a(f).\\n Melendez’s focus is on subpart (4), for what it says and for what it does\\nnot. It says that an alien granted TPS, when seeking an adjustment of status\\nunder Section 1255, is “considered” to be in “lawful status.” It does not mention\\nSection 1255(c)(2) or its requirement of continuous lawful status after entry.\\nThus, Melendez argues, because he had been granted TPS, he is in lawful\\nstatus notwithstanding Section 1255(c).\\n This circuit has not previously had to address this issue. The Eleventh\\nCircuit analyzed a closely related issue in Serrano v. United States Attorney\\nGeneral, 655 F.3d 1260 (11th Cir. 2011). Even though Serrano had received\\nTPS, he was not entitled to adjust his status because he had entered the United\\nStates without inspection. Id. at 1263, 1265. The denial of adjustment of\\nstatus to someone who had entered without inspection comes from Section\\n1255(a). The court held that even though an alien in TPS has “lawful status\\nas a nonimmigrant” under the provision Melendez also relies on, the\\nrequirement under Section 1255(a) that the alien have been inspected and\\nadmitted or paroled still applied. Id. at 1265.\\n The Eleventh Circuit recently relied on Serrano in an appeal presenting\\nthe same legal argument Melendez brings to us. Duron v. Stul, 724 F. App’x\\n791, 795 (11th Cir. 2018). We agree with that court’s careful parsing of Section\\n1254a(f). As the court explained, the prefatory phrase for the four subparts of\\nthat statute limits their applicability to the “period in which an alien is granted\\n 6\\n\\f Case: 18-20341 Document: 00515013200 Page: 7 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\ntemporary protected status under this section.” Id. at 794 (quoting § 1254a).\\nWe interpret that preface to mean that the statute does not alter the legal\\neffect of other periods of an alien’s presence. Therefore, for the period the alien\\nis in TPS, the alien is not “permanently residing in the United States under\\ncolor of law;” “may be deemed ineligible for public assistance by a State;” “may\\ntravel abroad with the prior consent of the Attorney General;” and “shall be\\nconsidered as being in, and maintaining, lawful status as a nonimmigrant” for\\npurposes of adjustment of status. Id. Only for the period of the TPS — a\\ntemporal limit on its effect — an alien is “in, and maintaining, lawful status.”\\nThe statute does not read that aliens who now hold TPS should be regarded as\\n“having been in and maintained” lawful status. What rights and status the\\nalien had prior to the TPS period are the creatures of other statutes or rules. 1\\n Melendez recognizes that the difficulty with his challenge is the reality\\nthat for a period of time after his 2000 entry on a temporary visa, he was not\\nin lawful status. What he needs is for the TPS to eliminate the relevance of\\nthat period of unlawful status. With that goal, he argues in essence that for\\npurposes of adjustment of status, Section 1254a(f)(4) makes the date of the\\ngrant of TPS a new entry. Such an argument has no statutory support. To the\\ncontrary, the fact that Section 1254a(f) identifies a finite period in which the\\nbenefits of TPS will operate makes unreasonable any argument that such\\nstatus eliminates the effect of any prior disqualifying acts.\\n\\n\\n 1 DHS interprets Section 1254a(f)(4) in this same way. See U.S. Dep’t of Justice,\\nImmigration and Naturalization Service, General Counsel’s Office, Legal Opinion No. 91-27,\\n1991 WL 1185138 (March 4, 1991) (“Section 244A(f)(4) does not make lawful the alien’s\\nunlawful presence in the United States prior to the granting of TPS.”); see also Employer\\nSols. Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, 833 F.3d 480, 484 (5th\\nCir. 2016) (noting that the Department of Justice, Immigration and Naturalization Service\\nis the “predecessor agency” to DHS).\\n Throughout his briefing, Melendez principally relies on one case, Medina v. Beers, 65\\nF. Supp. 3d 419 (E.D. Pa. 2014). There, the district judge analyzed these statutes in the\\nmanner Melendez urges. For the reasons we explain, though, we respectfully disagree.\\n 7\\n\\f Case: 18-20341 Document: 00515013200 Page: 8 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n Indeed, we have concluded that should the Attorney General remove a\\ncountry’s special designation, an alien in TPS “reverts to any immigration\\nstatus that he maintained or was granted while registered for TPS.” Orellana,\\n405 F.3d at 365. It is entirely consistent with that contingent consequence that\\nTPS does not absolve an alien of all prior unlawful conduct.\\n ***\\n Melendez overstayed his nonimmigrant visitor visa, accruing time as an\\nalien in unlawful status. That period made him ineligible for an adjustment\\nof status. Consequently, as a matter of law, Melendez failed to state a claim\\nupon which relief can be granted.\\n The judgment of the district court concluding there was no jurisdiction\\nis VACATED. We enter judgment that the complaint be DISMISSED with\\nprejudice.\\n\\n\\n\\n\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412105/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"BARKSDALE"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"HAYNES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4634852/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Oscar Ernesto MELENDEZ, Plaintiff-Appellant v. Kevin K. MCALEENAN, Acting Secretary, U.S. Department of Homeland Security; Lee Cissna, United States Citizenship and Immigration Services Director; Mark Siegl, Field Office Director, Defendants-Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20341 Document: 00515013200 Page: 1 Date Filed: 06/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-20341 FILED\n June 27, 2019\n Lyle W. Cayce\nOSCAR ERNESTO MELENDEZ, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nKEVIN K. MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF\nHOMELAND SECURITY; LEE CISSNA, United States Citizenship and\nImmigration Services Director; MARK SIEGL, Field Office Director,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n Oscar Ernesto Melendez filed suit seeking a declaratory judgment that\nthe Department of Homeland Security had improperly denied his application\nto adjust his status to that of a legal permanent resident. The district court\ndismissed his complaint for lack of jurisdiction. The government now concedes\nthere was jurisdiction but urges we deny relief. Though there is jurisdiction,\nMelendez benefits little because we also conclude he did not state a legally\ncognizable claim. The district court’s ruling is VACATED, and the complaint\nis DISMISSED.\n\f Case: 18-20341 Document: 00515013200 Page: 2 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\n FACTS AND PROCEDURAL HISTORY\n Melendez, a native and citizen of El Salvador, entered the United States\nin February 2000 on a one-month nonimmigrant visitor visa. Melendez did not\nleave the United States after one month or at any later time either. In March\n2001, the Attorney General designated El Salvador for Temporary Protected\nStatus (“TPS”). As long as El Salvador is so designated, the special status for\nMelendez continues. See United States v. Orellana, 405 F.3d 360, 366 (5th Cir.\n2005). Melendez filed for TPS in August 2001 and had it granted, but the\nrecord does not show the date of its grant. From the expiration of his visa in\nMarch 2000 to the award of TPS sometime in late 2001, Melendez was an alien\nunlawfully present in the United States.\n We do not have the documentation, but Melendez states (and the\ngovernment does not dispute) that he has an approved I-130 Petition for Alien\nRelative filed by his United States citizen brother, and that his visa priority\ndate is in 2003. In July 2016, Melendez filed a Form I-485 with the United\nStates Citizenship and Immigration Services (“USCIS”) seeking adjustment of\nhis status to that of a lawful permanent resident and stated that an immigrant\nvisa was immediately available. See 8 U.S.C. § 1255(a). USCIS denied his\napplication in September 2017. It determined he could not adjust his status\nbecause from the date his visitor visa expired, March 2000, until his filing for\nTPS, August 2001, Melendez was not lawfully present in the United States.\n In November 2017, Melendez filed suit in the United States District\nCourt for the Southern District of Texas against the Secretary of the\nDepartment of Homeland Security (“DHS”) and two individuals in their official\ncapacities with USCIS. To be clear, this suit does not concern Melendez’s\nimminent removal from the United States. He seeks a declaratory judgment\nthat USCIS erred in its denial of his adjustment application. Melendez\nclaimed both general federal question jurisdiction under 28 U.S.C. § 1331 and\n 2\n\f Case: 18-20341 Document: 00515013200 Page: 3 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\na right to sue under the Administrative Procedure Act, 5 U.S.C. §§ 701-706.\nThe district court granted the government’s motion to dismiss for lack of\njurisdiction. Melendez timely appealed.\n\n\n DISCUSSION\n I. Absence of Jurisdiction and Failure to State a Claim\n The government moved for dismissal based on an absence of jurisdiction\nunder Federal Rule of Civil Procedure 12(b)(1) and alternatively for failure to\nstate a claim under Rule 12(b)(6). The district court held it lacked jurisdiction\ndue to 8 U.S.C. § 1252(a)(2)(B)(i) and did not reach the merits question.\nSection 1252(a)(2)(B)(i) strips federal courts of jurisdiction to review “any\njudgment regarding the granting of relief under,” among others, Section 1255,\nwhich is the statute applicable to an adjustment of status. On appeal, the\ngovernment abandons the argument that there is no jurisdiction,\nacknowledging one of our decisions in which we held the bar to reviewing a\n“judgment regarding the granting of relief” applies only to discretionary\ndecisions. Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215-16 (5th Cir. 2003). A\ndecision as to “whether an alien satisfies the continuous presence requirement\nis a nondiscretionary determination.” Id. at 217. We hold, then, that the denial\nof Melendez’s adjustment application was a nondiscretionary decision based\non the finding he was statutorily ineligible, making Section 1252(a)(2)(B)(i)’s\njurisdictional bar inapplicable.\n On appeal, the government again argues Melendez fails to state a claim\nand that we should affirm the dismissal of his complaint. Though the only\nruling by the district court was based on jurisdiction, “[w]e are free to uphold\nthe . . . judgment on any basis that is supported by the record.” Zuspann v.\nBrown, 60 F.3d 1156, 1160 (5th Cir. 1995). We now turn to whether Melendez\nhas stated a claim.\n 3\n\f Case: 18-20341 Document: 00515013200 Page: 4 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\n Had the district court relied on this basis to dismiss, we would review de\nnovo. Mowbray v. Cameron Cnty., 274 F.3d 269, 276 (5th Cir. 2001). That\nnecessarily also is our standard when, as here, the district court did not reach\nthe issue and dismissed on a ground we do not accept. Melendez must have\nalleged “enough facts to state a claim to relief that is plausible on its face.” Bell\nAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also FED. R. CIV. P.\n12(b)(6). In evaluating claims, we accept all well-pled facts as true and view\nall facts in the light most favorable to the plaintiff. Doe ex rel. Magee v.\nCovington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en\nbanc). We do not give any weight to either party’s legal conclusions. Ashcroft\nv. Iqbal, 556 U.S. 662, 678 (2009). We are not concerned with whether a\nplaintiff will succeed but only with whether the complaint states a plausible,\nlegally cognizable claim. Doe ex rel. Magee, 675 F.3d at 854.\n Melendez’s claim is that he is entitled to adjust status despite\nundisputed facts that the government argues make him ineligible. Thus, the\nissue under Rule 12(b)(6) is one of law. To adjust status, an alien must (1) have\nbeen “inspected and admitted or paroled into the United States;” (2) “ma[de]\nan application for . . . adjustment [of status];” (3) be “eligible to receive an\nimmigrant visa and [be] admissible to the United States for permanent\nresidence;” and (4) have “an immigrant visa . . . immediately available to him\nat the time [the] application is filed.” 8 U.S.C. § 1255(a).\n Section 1255(c) lists those who are barred from eligibility for adjustment\nof status, including “an alien (other than an immediate relative as defined in\nsection 1151(b) . . .) . . . who has failed (other than through no fault of his own\nor for technical reasons) to maintain continuously a lawful status since entry\ninto the United States.” 8 U.S.C. § 1255(c)(2). It is clear that between the date\nMelendez began his visa overstay and at least the date he filed for TPS, he was\nnot in lawful status. Also clear is that the two caveats in Section 1255(c) that\n 4\n\f Case: 18-20341 Document: 00515013200 Page: 5 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\nwe just quoted are inapplicable. The first applies to an alien who is “an\nimmediate relative,” defined as “the children, spouses, and parents of a citizen\nof the United States.” 8 U.S.C. § 1151(b)(2)(A)(i). Melendez’s brother is the\nrelative. The second applies if a failure to maintain continuous lawful status\nafter entry was not the petitioner’s fault. See 8 C.F.R. § 1245.1(d)(2). No facts\nfor that here.\n Therefore, Melendez’s suit can survive a motion to dismiss for failure to\nstate a claim only if the grant of TPS itself removed the ineligibility based on\nhis earlier unlawful status. That is his argument, which we now review.\n\n\n II. Temporary Protected Status\n Melendez first recognizes that he is a beneficiary of the rights that flow\nfrom the Attorney General’s designating El Salvador as a foreign state “unable,\ntemporarily, to handle adequately the return” of its nationals after a series of\nearthquakes in early 2001. See 8 U.S.C. 1254a(b)(1)(B); Designation of El\nSalvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214,\n14,214 (Mar. 9, 2001); Termination of the Designation of El Salvador for\nTemporary Protected Status, 83 Fed. Reg. 2,654, 2,655 (Jan. 18, 2018). Second,\nhe acknowledges that generally, in order to receive an adjustment of status, an\nalien must “maintain continuously a lawful status since entry into the United\nStates.” 8 U.S.C. § 1255(c)(2). Melendez has not done so, as he overstayed the\nvisa that permitted his entry in 2000. Nonetheless, he argues that Congress\nhas eliminated that requirement for those who have been granted TPS.\n This contention is based on the following statutory subsection, entitled\n“Benefits and status during period of temporary protected status;”\n During a period in which an alien is granted temporary\n protected status under this section--\n (1) the alien shall not be considered to be permanently\n residing in the United States under color of law;\n 5\n\f Case: 18-20341 Document: 00515013200 Page: 6 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\n (2) the alien may be deemed ineligible for public assistance\n by a State . . . or any political subdivision thereof which furnishes\n such assistance;\n (3) the alien may travel abroad with the prior consent of the\n Attorney General; and\n (4) for purposes of adjustment of status under section 1255\n of this title and change of status under section 1258 of this title,\n the alien shall be considered as being in, and maintaining, lawful\n status as a nonimmigrant.\n8 U.S.C. § 1254a(f).\n Melendez’s focus is on subpart (4), for what it says and for what it does\nnot. It says that an alien granted TPS, when seeking an adjustment of status\nunder Section 1255, is “considered” to be in “lawful status.” It does not mention\nSection 1255(c)(2) or its requirement of continuous lawful status after entry.\nThus, Melendez argues, because he had been granted TPS, he is in lawful\nstatus notwithstanding Section 1255(c).\n This circuit has not previously had to address this issue. The Eleventh\nCircuit analyzed a closely related issue in Serrano v. United States Attorney\nGeneral, 655 F.3d 1260 (11th Cir. 2011). Even though Serrano had received\nTPS, he was not entitled to adjust his status because he had entered the United\nStates without inspection. Id. at 1263, 1265. The denial of adjustment of\nstatus to someone who had entered without inspection comes from Section\n1255(a). The court held that even though an alien in TPS has “lawful status\nas a nonimmigrant” under the provision Melendez also relies on, the\nrequirement under Section 1255(a) that the alien have been inspected and\nadmitted or paroled still applied. Id. at 1265.\n The Eleventh Circuit recently relied on Serrano in an appeal presenting\nthe same legal argument Melendez brings to us. Duron v. Stul, 724 F. App’x\n791, 795 (11th Cir. 2018). We agree with that court’s careful parsing of Section\n1254a(f). As the court explained, the prefatory phrase for the four subparts of\nthat statute limits their applicability to the “period in which an alien is granted\n 6\n\f Case: 18-20341 Document: 00515013200 Page: 7 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\ntemporary protected status under this section.” Id. at 794 (quoting § 1254a).\nWe interpret that preface to mean that the statute does not alter the legal\neffect of other periods of an alien’s presence. Therefore, for the period the alien\nis in TPS, the alien is not “permanently residing in the United States under\ncolor of law;” “may be deemed ineligible for public assistance by a State;” “may\ntravel abroad with the prior consent of the Attorney General;” and “shall be\nconsidered as being in, and maintaining, lawful status as a nonimmigrant” for\npurposes of adjustment of status. Id. Only for the period of the TPS — a\ntemporal limit on its effect — an alien is “in, and maintaining, lawful status.”\nThe statute does not read that aliens who now hold TPS should be regarded as\n“having been in and maintained” lawful status. What rights and status the\nalien had prior to the TPS period are the creatures of other statutes or rules. 1\n Melendez recognizes that the difficulty with his challenge is the reality\nthat for a period of time after his 2000 entry on a temporary visa, he was not\nin lawful status. What he needs is for the TPS to eliminate the relevance of\nthat period of unlawful status. With that goal, he argues in essence that for\npurposes of adjustment of status, Section 1254a(f)(4) makes the date of the\ngrant of TPS a new entry. Such an argument has no statutory support. To the\ncontrary, the fact that Section 1254a(f) identifies a finite period in which the\nbenefits of TPS will operate makes unreasonable any argument that such\nstatus eliminates the effect of any prior disqualifying acts.\n\n\n 1 DHS interprets Section 1254a(f)(4) in this same way. See U.S. Dep’t of Justice,\nImmigration and Naturalization Service, General Counsel’s Office, Legal Opinion No. 91-27,\n1991 WL 1185138 (March 4, 1991) (“Section 244A(f)(4) does not make lawful the alien’s\nunlawful presence in the United States prior to the granting of TPS.”); see also Employer\nSols. Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, 833 F.3d 480, 484 (5th\nCir. 2016) (noting that the Department of Justice, Immigration and Naturalization Service\nis the “predecessor agency” to DHS).\n Throughout his briefing, Melendez principally relies on one case, Medina v. Beers, 65\nF. Supp. 3d 419 (E.D. Pa. 2014). There, the district judge analyzed these statutes in the\nmanner Melendez urges. For the reasons we explain, though, we respectfully disagree.\n 7\n\f Case: 18-20341 Document: 00515013200 Page: 8 Date Filed: 06/27/2019\n\n\n\n No. 18-20341\n Indeed, we have concluded that should the Attorney General remove a\ncountry’s special designation, an alien in TPS “reverts to any immigration\nstatus that he maintained or was granted while registered for TPS.” Orellana,\n405 F.3d at 365. It is entirely consistent with that contingent consequence that\nTPS does not absolve an alien of all prior unlawful conduct.\n ***\n Melendez overstayed his nonimmigrant visitor visa, accruing time as an\nalien in unlawful status. That period made him ineligible for an adjustment\nof status. Consequently, as a matter of law, Melendez failed to state a claim\nupon which relief can be granted.\n The judgment of the district court concluding there was no jurisdiction\nis VACATED. We enter judgment that the complaint be DISMISSED with\nprejudice.\n\n\n\n\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Oscar Ernesto MELENDEZ, Plaintiff-Appellant v. Kevin K. MCALEENAN, Acting Secretary, U.S. Department of Homeland Security; Lee Cissna, United States Citizenship and Immigration Services Director; Mark Siegl, Field Office Director, Defendants-Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20341 Document: 00515013200 Page: 1 Date Filed: 06/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-20341 FILED\\n June 27, 2019\\n Lyle W. Cayce\\nOSCAR ERNESTO MELENDEZ, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nKEVIN K. MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF\\nHOMELAND SECURITY; LEE CISSNA, United States Citizenship and\\nImmigration Services Director; MARK SIEGL, Field Office Director,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n Oscar Ernesto Melendez filed suit seeking a declaratory judgment that\\nthe Department of Homeland Security had improperly denied his application\\nto adjust his status to that of a legal permanent resident. The district court\\ndismissed his complaint for lack of jurisdiction. The government now concedes\\nthere was jurisdiction but urges we deny relief. Though there is jurisdiction,\\nMelendez benefits little because we also conclude he did not state a legally\\ncognizable claim. The district court’s ruling is VACATED, and the complaint\\nis DISMISSED.\\n\\f Case: 18-20341 Document: 00515013200 Page: 2 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n FACTS AND PROCEDURAL HISTORY\\n Melendez, a native and citizen of El Salvador, entered the United States\\nin February 2000 on a one-month nonimmigrant visitor visa. Melendez did not\\nleave the United States after one month or at any later time either. In March\\n2001, the Attorney General designated El Salvador for Temporary Protected\\nStatus (“TPS”). As long as El Salvador is so designated, the special status for\\nMelendez continues. See United States v. Orellana, 405 F.3d 360, 366 (5th Cir.\\n2005). Melendez filed for TPS in August 2001 and had it granted, but the\\nrecord does not show the date of its grant. From the expiration of his visa in\\nMarch 2000 to the award of TPS sometime in late 2001, Melendez was an alien\\nunlawfully present in the United States.\\n We do not have the documentation, but Melendez states (and the\\ngovernment does not dispute) that he has an approved I-130 Petition for Alien\\nRelative filed by his United States citizen brother, and that his visa priority\\ndate is in 2003. In July 2016, Melendez filed a Form I-485 with the United\\nStates Citizenship and Immigration Services (“USCIS”) seeking adjustment of\\nhis status to that of a lawful permanent resident and stated that an immigrant\\nvisa was immediately available. See 8 U.S.C. § 1255(a). USCIS denied his\\napplication in September 2017. It determined he could not adjust his status\\nbecause from the date his visitor visa expired, March 2000, until his filing for\\nTPS, August 2001, Melendez was not lawfully present in the United States.\\n In November 2017, Melendez filed suit in the United States District\\nCourt for the Southern District of Texas against the Secretary of the\\nDepartment of Homeland Security (“DHS”) and two individuals in their official\\ncapacities with USCIS. To be clear, this suit does not concern Melendez’s\\nimminent removal from the United States. He seeks a declaratory judgment\\nthat USCIS erred in its denial of his adjustment application. Melendez\\nclaimed both general federal question jurisdiction under 28 U.S.C. § 1331 and\\n 2\\n\\f Case: 18-20341 Document: 00515013200 Page: 3 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\na right to sue under the Administrative Procedure Act, 5 U.S.C. §§ 701-706.\\nThe district court granted the government’s motion to dismiss for lack of\\njurisdiction. Melendez timely appealed.\\n\\n\\n DISCUSSION\\n I. Absence of Jurisdiction and Failure to State a Claim\\n The government moved for dismissal based on an absence of jurisdiction\\nunder Federal Rule of Civil Procedure 12(b)(1) and alternatively for failure to\\nstate a claim under Rule 12(b)(6). The district court held it lacked jurisdiction\\ndue to 8 U.S.C. § 1252(a)(2)(B)(i) and did not reach the merits question.\\nSection 1252(a)(2)(B)(i) strips federal courts of jurisdiction to review “any\\njudgment regarding the granting of relief under,” among others, Section 1255,\\nwhich is the statute applicable to an adjustment of status. On appeal, the\\ngovernment abandons the argument that there is no jurisdiction,\\nacknowledging one of our decisions in which we held the bar to reviewing a\\n“judgment regarding the granting of relief” applies only to discretionary\\ndecisions. Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215-16 (5th Cir. 2003). A\\ndecision as to “whether an alien satisfies the continuous presence requirement\\nis a nondiscretionary determination.” Id. at 217. We hold, then, that the denial\\nof Melendez’s adjustment application was a nondiscretionary decision based\\non the finding he was statutorily ineligible, making Section 1252(a)(2)(B)(i)’s\\njurisdictional bar inapplicable.\\n On appeal, the government again argues Melendez fails to state a claim\\nand that we should affirm the dismissal of his complaint. Though the only\\nruling by the district court was based on jurisdiction, “[w]e are free to uphold\\nthe . . . judgment on any basis that is supported by the record.” Zuspann v.\\nBrown, 60 F.3d 1156, 1160 (5th Cir. 1995). We now turn to whether Melendez\\nhas stated a claim.\\n 3\\n\\f Case: 18-20341 Document: 00515013200 Page: 4 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n Had the district court relied on this basis to dismiss, we would review de\\nnovo. Mowbray v. Cameron Cnty., 274 F.3d 269, 276 (5th Cir. 2001). That\\nnecessarily also is our standard when, as here, the district court did not reach\\nthe issue and dismissed on a ground we do not accept. Melendez must have\\nalleged “enough facts to state a claim to relief that is plausible on its face.” Bell\\nAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also FED. R. CIV. P.\\n12(b)(6). In evaluating claims, we accept all well-pled facts as true and view\\nall facts in the light most favorable to the plaintiff. Doe ex rel. Magee v.\\nCovington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en\\nbanc). We do not give any weight to either party’s legal conclusions. Ashcroft\\nv. Iqbal, 556 U.S. 662, 678 (2009). We are not concerned with whether a\\nplaintiff will succeed but only with whether the complaint states a plausible,\\nlegally cognizable claim. Doe ex rel. Magee, 675 F.3d at 854.\\n Melendez’s claim is that he is entitled to adjust status despite\\nundisputed facts that the government argues make him ineligible. Thus, the\\nissue under Rule 12(b)(6) is one of law. To adjust status, an alien must (1) have\\nbeen “inspected and admitted or paroled into the United States;” (2) “ma[de]\\nan application for . . . adjustment [of status];” (3) be “eligible to receive an\\nimmigrant visa and [be] admissible to the United States for permanent\\nresidence;” and (4) have “an immigrant visa . . . immediately available to him\\nat the time [the] application is filed.” 8 U.S.C. § 1255(a).\\n Section 1255(c) lists those who are barred from eligibility for adjustment\\nof status, including “an alien (other than an immediate relative as defined in\\nsection 1151(b) . . .) . . . who has failed (other than through no fault of his own\\nor for technical reasons) to maintain continuously a lawful status since entry\\ninto the United States.” 8 U.S.C. § 1255(c)(2). It is clear that between the date\\nMelendez began his visa overstay and at least the date he filed for TPS, he was\\nnot in lawful status. Also clear is that the two caveats in Section 1255(c) that\\n 4\\n\\f Case: 18-20341 Document: 00515013200 Page: 5 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\nwe just quoted are inapplicable. The first applies to an alien who is “an\\nimmediate relative,” defined as “the children, spouses, and parents of a citizen\\nof the United States.” 8 U.S.C. § 1151(b)(2)(A)(i). Melendez’s brother is the\\nrelative. The second applies if a failure to maintain continuous lawful status\\nafter entry was not the petitioner’s fault. See 8 C.F.R. § 1245.1(d)(2). No facts\\nfor that here.\\n Therefore, Melendez’s suit can survive a motion to dismiss for failure to\\nstate a claim only if the grant of TPS itself removed the ineligibility based on\\nhis earlier unlawful status. That is his argument, which we now review.\\n\\n\\n II. Temporary Protected Status\\n Melendez first recognizes that he is a beneficiary of the rights that flow\\nfrom the Attorney General’s designating El Salvador as a foreign state “unable,\\ntemporarily, to handle adequately the return” of its nationals after a series of\\nearthquakes in early 2001. See 8 U.S.C. 1254a(b)(1)(B); Designation of El\\nSalvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214,\\n14,214 (Mar. 9, 2001); Termination of the Designation of El Salvador for\\nTemporary Protected Status, 83 Fed. Reg. 2,654, 2,655 (Jan. 18, 2018). Second,\\nhe acknowledges that generally, in order to receive an adjustment of status, an\\nalien must “maintain continuously a lawful status since entry into the United\\nStates.” 8 U.S.C. § 1255(c)(2). Melendez has not done so, as he overstayed the\\nvisa that permitted his entry in 2000. Nonetheless, he argues that Congress\\nhas eliminated that requirement for those who have been granted TPS.\\n This contention is based on the following statutory subsection, entitled\\n“Benefits and status during period of temporary protected status;”\\n During a period in which an alien is granted temporary\\n protected status under this section--\\n (1) the alien shall not be considered to be permanently\\n residing in the United States under color of law;\\n 5\\n\\f Case: 18-20341 Document: 00515013200 Page: 6 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n (2) the alien may be deemed ineligible for public assistance\\n by a State . . . or any political subdivision thereof which furnishes\\n such assistance;\\n (3) the alien may travel abroad with the prior consent of the\\n Attorney General; and\\n (4) for purposes of adjustment of status under section 1255\\n of this title and change of status under section 1258 of this title,\\n the alien shall be considered as being in, and maintaining, lawful\\n status as a nonimmigrant.\\n8 U.S.C. § 1254a(f).\\n Melendez’s focus is on subpart (4), for what it says and for what it does\\nnot. It says that an alien granted TPS, when seeking an adjustment of status\\nunder Section 1255, is “considered” to be in “lawful status.” It does not mention\\nSection 1255(c)(2) or its requirement of continuous lawful status after entry.\\nThus, Melendez argues, because he had been granted TPS, he is in lawful\\nstatus notwithstanding Section 1255(c).\\n This circuit has not previously had to address this issue. The Eleventh\\nCircuit analyzed a closely related issue in Serrano v. United States Attorney\\nGeneral, 655 F.3d 1260 (11th Cir. 2011). Even though Serrano had received\\nTPS, he was not entitled to adjust his status because he had entered the United\\nStates without inspection. Id. at 1263, 1265. The denial of adjustment of\\nstatus to someone who had entered without inspection comes from Section\\n1255(a). The court held that even though an alien in TPS has “lawful status\\nas a nonimmigrant” under the provision Melendez also relies on, the\\nrequirement under Section 1255(a) that the alien have been inspected and\\nadmitted or paroled still applied. Id. at 1265.\\n The Eleventh Circuit recently relied on Serrano in an appeal presenting\\nthe same legal argument Melendez brings to us. Duron v. Stul, 724 F. App’x\\n791, 795 (11th Cir. 2018). We agree with that court’s careful parsing of Section\\n1254a(f). As the court explained, the prefatory phrase for the four subparts of\\nthat statute limits their applicability to the “period in which an alien is granted\\n 6\\n\\f Case: 18-20341 Document: 00515013200 Page: 7 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\ntemporary protected status under this section.” Id. at 794 (quoting § 1254a).\\nWe interpret that preface to mean that the statute does not alter the legal\\neffect of other periods of an alien’s presence. Therefore, for the period the alien\\nis in TPS, the alien is not “permanently residing in the United States under\\ncolor of law;” “may be deemed ineligible for public assistance by a State;” “may\\ntravel abroad with the prior consent of the Attorney General;” and “shall be\\nconsidered as being in, and maintaining, lawful status as a nonimmigrant” for\\npurposes of adjustment of status. Id. Only for the period of the TPS — a\\ntemporal limit on its effect — an alien is “in, and maintaining, lawful status.”\\nThe statute does not read that aliens who now hold TPS should be regarded as\\n“having been in and maintained” lawful status. What rights and status the\\nalien had prior to the TPS period are the creatures of other statutes or rules. 1\\n Melendez recognizes that the difficulty with his challenge is the reality\\nthat for a period of time after his 2000 entry on a temporary visa, he was not\\nin lawful status. What he needs is for the TPS to eliminate the relevance of\\nthat period of unlawful status. With that goal, he argues in essence that for\\npurposes of adjustment of status, Section 1254a(f)(4) makes the date of the\\ngrant of TPS a new entry. Such an argument has no statutory support. To the\\ncontrary, the fact that Section 1254a(f) identifies a finite period in which the\\nbenefits of TPS will operate makes unreasonable any argument that such\\nstatus eliminates the effect of any prior disqualifying acts.\\n\\n\\n 1 DHS interprets Section 1254a(f)(4) in this same way. See U.S. Dep’t of Justice,\\nImmigration and Naturalization Service, General Counsel’s Office, Legal Opinion No. 91-27,\\n1991 WL 1185138 (March 4, 1991) (“Section 244A(f)(4) does not make lawful the alien’s\\nunlawful presence in the United States prior to the granting of TPS.”); see also Employer\\nSols. Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, 833 F.3d 480, 484 (5th\\nCir. 2016) (noting that the Department of Justice, Immigration and Naturalization Service\\nis the “predecessor agency” to DHS).\\n Throughout his briefing, Melendez principally relies on one case, Medina v. Beers, 65\\nF. Supp. 3d 419 (E.D. Pa. 2014). There, the district judge analyzed these statutes in the\\nmanner Melendez urges. For the reasons we explain, though, we respectfully disagree.\\n 7\\n\\f Case: 18-20341 Document: 00515013200 Page: 8 Date Filed: 06/27/2019\\n\\n\\n\\n No. 18-20341\\n Indeed, we have concluded that should the Attorney General remove a\\ncountry’s special designation, an alien in TPS “reverts to any immigration\\nstatus that he maintained or was granted while registered for TPS.” Orellana,\\n405 F.3d at 365. It is entirely consistent with that contingent consequence that\\nTPS does not absolve an alien of all prior unlawful conduct.\\n ***\\n Melendez overstayed his nonimmigrant visitor visa, accruing time as an\\nalien in unlawful status. That period made him ineligible for an adjustment\\nof status. Consequently, as a matter of law, Melendez failed to state a claim\\nupon which relief can be granted.\\n The judgment of the district court concluding there was no jurisdiction\\nis VACATED. We enter judgment that the complaint be DISMISSED with\\nprejudice.\\n\\n\\n\\n\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2476,"cells":{"id":{"kind":"number","value":4635221,"string":"4,635,221"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"W. M. v. C. v. William Barr, U.S. Atty Gen"},"decision_date":{"kind":"string","value":"2019-06-28"},"docket_number":{"kind":"string","value":"17-60753"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING, SMITH, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"REVISED June 28, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-60753 June 7, 2019\\n Lyle W. Cayce\\n Clerk\\nW.M.V.C.; A.P.V.,\\n\\n Petitioners,\\n\\nversus\\n\\nWILLIAM P. BARR, U.S. Attorney General,\\n\\n Respondent.\\n\\n\\n\\n Petition for Review of an Order of\\n the Board of Immigration Appeals\\n\\n\\n\\n\\nBefore KING, SMITH, and WILLETT, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n W.M.V.C. and her daughter A.P.V. are Honduran immigrants who\\nappealed the dismissal of their applications for asylum and withholding of\\nremoval. We granted the government’s motion to remand to allow the Board\\nof Immigration Appeals (“BIA”) to consider the issues raised in the petitioners’\\nopening brief. Petitioners seek to recover attorneys’ fees and expenses under\\nthe Equal Access to Justice Act (“EAJA”). Because the government’s position\\nas a whole was substantially justified, we deny the petition for review.\\n\\n No. 17-60753\\n I.\\n In 1999, W.M.V.C. began work as a housekeeper for Angelica Perez, who\\nsoon professed her love for W.M.V.C. and forcibly insisted that they live to-\\ngether in a romantic relationship. For the next sixteen years, Perez frequently\\nraped and abused W.M.V.C.—sometimes in front of W.M.V.C.’s two children.\\nPerez also regularly beat the children and threatened to kill W.M.V.C.’s family\\nif she attempted to leave. To prevent the possibility of escape, Perez locked the\\ndoor and windows anytime she left the house. W.M.V.C. attempted to escape\\ntwice, but her efforts incurred only greater mistreatment.\\n\\n Despite the continual violence, W.M.V.C. never contacted the police,\\nmany of whom were close friends with Perez. As a retired officer, Perez fre-\\nquently invited her former colleagues to her home for drinks. On those occa-\\nsions, the police observed Perez locking W.M.V.C. and the children in a back-\\nroom yet failed to intervene. Once, when W.M.V.C.’s brother filed a complaint\\nagainst Perez for nearly hitting W.M.V.C.’s sister with a car, the police took\\nPerez into custody. But they soon released her, advising her to kill W.M.V.C.’s\\nsiblings if they continued to meddle in her affairs.\\n\\n As the years passed, rumors began to percolate that Perez and W.M.V.C.\\nwere romantically involved. Neighbors discussed “how disgusting it was that\\n[W.M.V.C.] lived with another woman” and how “rape would fix her.” After a\\ngang member threatened to kill W.M.V.C. in an effort to extort money, she\\nmade one final attempt to escape. When petitioners succeeded in fleeing to the\\nUnited States in 2015, Perez created a fictitious Facebook account for her un-\\nwilling lover, ostensibly professing W.M.V.C.’s affections for Perez.\\n\\n Petitioners applied for asylum and withholding of removal. W.M.V.C.\\nmaintained that she had a well-founded fear of future persecution in Honduras\\nbased on her perceived homosexuality and anti-gang political opinion.\\n\\n 2\\n\\n No. 17-60753\\nMoreover, she averred that she had been persecuted on account of her\\nmembership in four particular social groups: (1) Honduran women unable to\\nleave a domestic relationship; (2) Honduran women viewed as property by\\nvirtue of their status in a domestic relationship; (3) Honduran women without\\na male protector; and (4) Honduran female business managers without a male\\npartner. Finally, W.M.V.C. sought protection under the Convention Against\\nTorture (“CAT”), alleging that the Honduran police were willfully blind to\\nPerez’s abuse.\\n\\n In her independent application, A.P.V. rehashed many of those same\\nclaims. She also alleged persecution as a member of W.M.V.C.’s nuclear fam-\\nily. All told, petitioners advanced eight distinct grounds for asylum and with-\\nholding of removal.\\n\\n The immigration judge (“IJ”) found petitioners “generally credible” but\\ndenied their applications. Though recognizing that homosexual individuals\\nmay constitute a cognizable particular social group, the IJ concluded that\\n“[Perez’s] abusive behavior was not motivated by any alleged perception that\\n[W.M.V.C.] was homosexual.” The IJ determined that petitioners’ other pro-\\nposed social groups were not viable and that, even if they were, petitioners had\\nnot demonstrated persecution on account of their membership in those groups\\nor imputed political opinion. In denying CAT relief, the IJ reasoned that the\\npolice were neither “aware of any torture” nor “operating under color of law”\\nduring their social visits to Perez’s home. As a result, the IJ found no proof\\nthat Honduran police acting in their official capacity would participate or\\nacquiesce in petitioners’ alleged torture.\\n\\n The BIA affirmed. Without addressing whether the proposed social\\ngroups were cognizable, the BIA determined that petitioners had not encoun-\\ntered any past—and would not face any future—harm based on their\\n\\n 3\\n\\n No. 17-60753\\nmembership in those groups or their political persuasion. The BIA further held\\nthat the officers had observed no torture when visiting Perez’s home in their\\npersonal capacity.\\n\\n We granted petitioners’ unopposed motion for a stay of removal pending\\nthis petition for review. In their opening brief, they contended that the agency\\nhad failed to respond to the substance of the sexual-orientation claim and to\\nconsider evidence offered in support thereof. Specifically, petitioners high-\\nlighted that the agency never addressed whether W.M.V.C. had a legitimate\\nfear of violence from others besides Perez. They also challenged the agency’s\\nconclusion that because Perez’s abuse had coincided with her drinking and\\nbecause “persons may commit uncharacteristic acts and say uncommon things”\\nwhen inebriated, W.M.V.C. never faced persecution for being a Honduran\\nwoman unable to leave a domestic partnership. Lastly, petitioners urged that\\nthe BIA had ignored significant evidence showing that the Honduran authori-\\nties had been aware of the torture but had refused to intervene.\\n\\n Rather than file a brief in response, the government moved to remand to\\nconsider the issues raised in petitioners’ opening brief. Yet the government\\ninsisted that its motion was not a concession of error and asked that each party\\nbear its own fees and costs. We granted the motion but denied the request that\\neach party pay its own costs. Petitioners then applied for attorneys’ fees and\\nexpenses under the EAJA.\\n\\n II.\\n Under the “American Rule,” each party ordinarily bears its own attor-\\nneys’ fees unless Congress has explicitly authorized otherwise. Hensley v.\\nEckerhart, 461 U.S. 424, 429 (1983). The EAJA provides such authorization.\\nIt awards attorneys’ fees and other expenses to a prevailing party in a civil\\naction against the United States. See 28 U.S.C. § 2412(d)(1)(A). As “a partial\\n 4\\n\\n No. 17-60753\\nwaiver of sovereign immunity,” the EAJA is “strictly construed in favor of the\\nUnited States.” Ardestani v. INS, 502 U.S. 129, 137 (1991). But once an\\nindividual plaintiff establishes that he is a prevailing party “whose net worth\\ndid not exceed $2,000,000 at the time the civil action was filed,” 28 U.S.C.\\n§ 2412(d)(2)(B), “the government must pay attorney’s fees unless it is able to\\nprove that its position was substantially justified or special circumstances\\nmake an award unjust.” Baker v. Bowen, 839 F.2d 1075, 1080 (5th Cir. 1988).\\n\\n The “position of the United States” encompasses both “the position taken\\nby the United States in the civil action” and “the action or failure to act by the\\nagency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). The\\ngovernment’s position thus includes the underlying decisions of the BIA and\\nthe IJ as well as “the government’s litigation position defending the agency\\naction.” Sylejmani v. Barr, No. 16-60556, 2019 WL 1590905, at *4 (5th Cir.\\nApr. 12, 2019) (per curiam) (unpublished).\\n\\n “Substantially justified” does not mean “‘justified to a high degree,’ but\\nrather ‘justified in substance or in the main’—that is, justified to a degree that\\ncould satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565\\n(1988). Although “[t]his standard is not overly stringent,” Sylejmani, 2019 WL\\n1590905, at *4 (citation omitted), the government must do more than show it\\nis “merely undeserving of sanctions for frivolousness,” Underwood, 487 U.S.\\nat 566. Instead, it bears “the burden of showing that its position in every stage\\nof the proceedings . . . had a reasonable basis both in law and fact.” Baker,\\n839 F.2d at 1080. “The mere fact that the government lost—even if the re-\\nviewing court held it acted unreasonably or arbitrary and capriciously—does\\nnot alone demonstrate that its position was not substantially justified.”\\nSylejmani, 2019 WL 1590905, at *4. Especially where the case involves a novel\\nquestion on which there is little precedent, courts are chary of finding the\\n\\n 5\\n\\n No. 17-60753\\ngovernment’s position unreasonable. 1\\n\\n The government does not contest that petitioners are prevailing parties\\nwhose net worth is under the statutory cap. 2 Nor does it dispute that special\\ncircumstances make an EAJA award unjust. See 28 U.S.C. § 2412(d)(1)(A).\\nInstead, the government maintains that petitioners are not entitled to attor-\\nneys’ fees because its position was substantially justified. Without defending\\nits stance on W.M.V.C.’s sexual-orientation claim, the government asserts the\\nagency reasonably denied CAT protection and rejected, under In re A-R-C-G-,\\n26 I. & N. Dec. 388 (BIA 2014), overruled by In re A-B-, 27 I. & N. Dec. 316\\n(A.G. 2018), the proposed social group of Honduran women unable to leave a\\ndomestic relationship. Because its posture on those two issues was reasonable,\\nthe government contends that its position, in toto, was substantially justified.\\n\\n A.\\n This case requires us to decide whether the government’s position was\\nsubstantially justified where the agency made multiple determinations—some\\nof which were reasonable and others that were not. That question “has proved\\nto be an issue of considerable conceptual and practical difficulty.” Roanoke\\nRiver Basin Ass’n v. Hudson, 991 F.2d 132, 138 (4th Cir. 1993) (citation omit-\\nted). The closest the Supreme Court has come to addressing it was in\\n\\n\\n 1E.g., Sylejmani, 2019 WL 1590905, at *6 (concluding that the government was sub-\\nstantially justified in “addressing this ‘novel and difficult’ issue” (citation omitted)); accord\\nSaysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010); Li v. Keisler, 505 F.3d 913, 920 (9th Cir.\\n2007); Washington v. Heckler, 756 F.2d 959, 961–62 (3d Cir. 1985).\\n 2 A prevailing party is “one who has succeeded on any significant claim affording it\\nsome of the relief sought.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.\\n782, 791 (1989). Because petitioners sought a remand to the BIA, our decision to grant such\\nrelief constitutes a “judicially sanctioned change in the legal relationship of the parties” that\\nentitles petitioners to prevailing party status. Buckhannon Bd. & Care Home, Inc. v. W. Va.\\nDep’t of Health & Human Res., 532 U.S. 598, 605 (2001); see also Kellems v. Astrue, 628 F.3d\\n215, 216 (5th Cir. 2010) (“The district court’s remand made [the plaintiff] a ‘prevailing party’\\nfor purposes of the EAJA.”).\\n 6\\n\\n No. 17-60753\\nCommissioner, INS v. Jean, 496 U.S. 154 (1990).\\n\\n In Jean, the government’s position in the underlying litigation lacked\\njustification. But because its opposition to the application for fees was rea-\\nsonable, the government posited that the prevailing party could not recover\\nfees incurred during the fee-determination phase. Id. at 156–57. The Court\\ndisagreed. Noting that the EAJA “refer[s] to ‘the position of the United States’\\nin the singular,” id. at 159 (quoting 28 U.S.C. § 2412(d)(1)(A)), the Court ex-\\nplained that the statute “favors treating a case as an inclusive whole, rather\\nthan as atomized line-items,” id. at 161–62. Hence, it concluded that fees may\\nbe awarded for all phases of the case even though the government was substan-\\ntially justified in disputing the fee award. Id. at 162. Simply put, “[t]he single\\nfinding that the Government’s position lacks substantial justification . . .\\noperates as a one-time threshold for fee eligibility.” Id. at 160.\\n\\n Admittedly, Jean “did not squarely resolve how to determine whether\\nthe government’s position . . . was substantially justified when it loses on only\\none issue.” 3 That is because Jean spoke “to the grouping of various stages of\\nlitigation” but did not directly address “whether the position of the government\\ncompels all claims to be grouped for the analysis.” EEOC v. Memphis Health\\nCtr., Inc., 526 F. App’x 607, 614 (6th Cir. 2013) (emphasis added).\\n\\n Nevertheless, Jean has persuaded most circuit courts to award EAJA\\nfees only where the government’s position as a whole lacked substantial justi-\\nfication. 4 In making that determination, courts focus on the prominence of the\\n\\n\\n\\n 3 Roanoke River Basin, 991 F.2d at 138; see also Gatimi v. Holder, 606 F.3d 344, 350\\n(7th Cir. 2010) (cautioning against “tak[ing] judicial language” in Jean “out of context”).\\n 4Indeed, some courts consider the totality of the circumstances and eschew a claim-\\nby-claim analysis of the government’s position. See Ibrahim v. U.S. Dep’t of Homeland Sec.,\\n912 F.3d 1147, 1168–69 & n.16 (9th Cir. 2019) (en banc); United States v. Hurt, 676 F.3d 649,\\n652 (8th Cir. 2012); Saysana, 614 F.3d at 6; Senville v. Madison, 331 F. App’x 848, 849 (2d\\n 7\\n\\n No. 17-60753\\nissues on which the government was substantially justified—rather than\\nmerely comparing the rote number of reasonable and unreasonable claims in\\na single case. 5 Relatedly, courts emphasize the government’s prelitigation con-\\nduct when assessing the reasonableness of its overall position. See United\\nStates v. 515 Granby, LLC, 736 F.3d 309, 316 (4th Cir. 2013) (collecting cases).\\n\\n In contrast, only the D.C. Circuit has rejected “a ‘holistic approach’ to\\ndetermining whether an agency’s position is substantially justified.” See Air\\nTransp. Ass’n of Can. v. FAA, 156 F.3d 1329, 1332 (D.C. Cir. 1998). As the\\ncourt elaborated, “[v]irtually any government action is . . . grouped with other\\nactions,” and “[p]resumably the government is usually substantially justified\\non most of its actions.” Id. But if a prevailing party “cannot recover EAJA fees\\nbecause of this well-nigh universal grouping,” the court warned, “then Con-\\ngress’s enactment of the EAJA becomes a virtual nullity.” Id. Consequently,\\nthe D.C. Circuit views “the relevant ‘position’ of the government [a]s that which\\ncorresponds to the claim or aspect of the case on which the private party\\nprevailed.” Jacobs v. Schiffer, 204 F.3d 259, 264 (D.C. Cir. 2000).\\n\\n Although that approach has some intuitive appeal, the D.C. Circuit has\\nnot grappled with—much less mentioned—Jean’s command to “treat[] a case\\nas an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S.\\nat 162. Accordingly, we join the vast majority of our sister circuits in evalu-\\n\\n\\n\\n\\nCir. 2009); Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007); Roanoke River\\nBasin, 991 F.2d at 139. Alternatively, other courts preliminarily canvas the government’s\\nstance on each claim before assessing whether its position, in toto, was substantially justified.\\nSee Memphis Health Ctr., 526 F. App’x at 615; Gatimi, 606 F.3d at 349–50; United States v.\\nJones, 125 F.3d 1418, 1429 (11th Cir. 1997); Hanover Potato Prods., Inc. v. Shalala, 989 F.2d\\n123, 131 (3d Cir. 1993).\\n 5 See, e.g., Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir. 2016); Gatimi,\\n606 F.3d at 350; Nken v. Holder, 385 F. App’x 299, 301–02 (4th Cir. 2010) (per curiam);\\nHackett, 475 F.3d at 1173 n.1.\\n 8\\n\\n No. 17-60753\\nating the government’s position under the totality of the circumstances. Pro-\\nvided the government’s position as a whole was reasonable, a prevailing party\\nmay not recover EAJA fees even though some of the government’s actions or\\narguments were without merit.\\n\\n B.\\n Attorneys’ fees are unwarranted because the government was the pre-\\nvailing party on the bulk of petitioners’ claims and was substantially justified\\nin denying CAT protection. At most, the government’s position on the\\nA-R-C-G- claim lacked justification at only one stage of the proceedings.\\nThough the government does not defend the agency’s rejection of the sexual-\\norientation claim, that issue was not a prominent matter in this case. Hence,\\nwhen viewed in the aggregate, the position of the United States was\\nreasonable.\\n\\n 1.\\n Petitioners applied for asylum and withholding of removal on eight\\ndistinct grounds. 6 But they appealed the agency’s rulings only on the CAT,\\nA-R-C-G-, and sexual-orientation claims. Consequently, they have waived\\ntheir challenge on the other five claims. 7 Because the government therefore\\n\\n\\n\\n 6 W.M.V.C. claimed protection under the CAT and maintained that she had been per-\\nsecuted or had a well-founded fear of future persecution as a (1) perceived homosexual;\\n(2) political opponent of criminal gangs; (3) Honduran woman unable to leave a domestic\\nrelationship; (4) Honduran woman viewed as property by virtue of her status in a domestic\\nrelationship; (5) Honduran woman without a male protector; and (6) Honduran female busi-\\nness manager without a male partner. A.P.V. asserted many of those same claims and\\nalleged that she had been persecuted as a nuclear family member of W.M.V.C’s.\\n 7 In a footnote, petitioners sought to “preserve their right . . . on remand” to contest\\nthe BIA’s rejection of their other claims for relief. Nevertheless, “[a]rguments that are\\ninsufficiently addressed in the body of the brief . . . are waived.” See, e.g., Bridas S.A.P.I.C.\\nv. Gov’t of Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003) (finding waiver where\\nplaintiffs attempted to raise an argument in a footnote).\\n 9\\n\\n No. 17-60753\\nprevailed on those issues, its position on them was substantially justified. 8\\n\\n 2.\\n An alien seeking CAT protection must establish that (1) “it [is] more\\nlikely than not that [he] will be tortured upon return to his homeland” and\\n(2) “there [is] sufficient state action involved in that torture.” Garcia v. Holder,\\n756 F.3d 885, 891 (5th Cir. 2014). “Torture is an extreme form of cruel and\\ninhuman treatment . . . .” 8 C.F.R. § 208.18(a)(2). It includes “any act by which\\nsevere pain or suffering, whether physical or mental, is intentionally inflicted\\non a person for such purposes as . . . intimidating or coercing him . . . , or for\\nany reason based on discrimination of any kind.” Id. § 208.18(a)(1).\\n\\n To warrant relief under the CAT, the torture must occur “by, or with the\\nacquiescence of, government officials acting under the color of law.” Hakim v.\\nHolder, 628 F.3d 151, 155 (5th Cir. 2010). An “official acquiesces to torture\\nwhen he or she has prior awareness of such activity and thereafter breaches\\nhis or her legal responsibility to intervene.” Iruegas-Valdez v. Yates, 846 F.3d\\n806, 812 (5th Cir. 2017) (cleaned up). Acquiescence may be under color of law\\neven if it does not represent “officially sanctioned state action.” Garcia,\\n756 F.3d at 891. Instead, we consider whether the official’s conduct “consti-\\ntutes a misuse of power, possessed by virtue of state law and made possible\\nonly because the wrongdoer is clothed with the authority of state law.” Id.\\n\\n The agency reasonably found no evidence that Honduran officials acting\\nunder color of law would participate or acquiesce in petitioners’ alleged torture.\\nAfter all, petitioners averred that the police had seen Perez lock W.M.V.C. in\\n\\n\\n\\n 8 See Amezola-Garcia, 835 F.3d at 555 (finding substantial justification where the gov-\\nernment “successfully argued” the majority of the claims on appeal); Senville, 331 F. App’x\\nat 849 (affirming denial of attorneys’ fees where the agency “prevailed ‘on by far the majority\\nof the issues posed by the lawsuit’”).\\n 10\\n\\n No. 17-60753\\na room yet failed to intervene. But it is not apparent—and petitioners cite no\\ncase clearly establishing—that temporarily cloistering someone in a room con-\\nstitutes the “extreme form of cruel and inhuman treatment” necessary to trig-\\nger CAT relief. See 8 C.F.R. § 208.18(a)(2).\\n\\n Additionally, because the officers’ visits to Perez’s home were of a purely\\nsocial nature, it is not obvious that the police were acting under color of law.\\nCiting Laughlin v. Olszewski, 102 F.3d 190, 192 n.1 (5th Cir. 1996), petitioners\\nurge that “[w]hether a police officer is acting under color of law does not depend\\non his on-or-off-duty status at the time of the alleged violation.” But in Laugh-\\nlin, we held that an officer had acted under color of law in identifying himself\\nas a Houston police officer and “threaten[ing] to use the authority conveyed to\\nhim by virtue of his status to arrest [the plaintiff].” Id. Conversely, there is\\nno indication that the Honduran police misused their official capacity to harm\\npetitioners during their social visits.\\n\\n Petitioners fault the agency for not considering that the one time Perez\\nwas arrested for reckless driving, the police soon released her. More alarm-\\ningly, the police purportedly advised Perez to kill W.M.V.C.’s siblings if they\\ncontinued to interfere. Yet once again, reckless driving likely does not amount\\nto torture. Because the Honduran authorities did not appear to acquiesce to\\nany known acts of torture, the agency’s denial of CAT protection “had a reason-\\nable basis both in law and fact.” Baker, 839 F.2d at 1080.\\n\\n 3.\\n To qualify for asylum, an alien must show that (1) he “is outside of his\\ncountry and is unable or unwilling to return because of persecution or a well-\\nfounded fear of persecution,” and (2) “race, religion, nationality, membership\\nin a particular social group, or political opinion was or will be at least one cen-\\ntral reason for the persecution.” Orellana-Monson v. Holder, 685 F.3d 511, 518\\n 11\\n\\n No. 17-60753\\n(5th Cir. 2012) (cleaned up). The standard for obtaining withholding of re-\\nmoval is more stringent than that for asylum, “requiring a showing that it is\\nmore likely than not that the alien’s life or freedom would be threatened by\\npersecution on one of those grounds.” Id.\\n\\n Three factors guide our recognition of a particular social group. First,\\nthe group must consist of persons who “share a common immutable character-\\nistic that they either cannot change or should not be required to change be-\\ncause it is fundamental to their individual identities or consciences.”\\nHernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) (cleaned\\nup). Second, the “shared characteristic” must render the group socially visible\\nor distinct, enabling “a society [to] perceive those with the characteristic in\\nquestion as members of a social group.” Id. (citation omitted). Third, the group\\nmust “be defined with sufficient particularity to delimit its membership . . . as\\na discrete class of persons.” Id. at 786–87 (cleaned up).\\n\\n In A-R-C-G-, 26 I. & N. Dec. at 388–89, the BIA held that “married\\nwomen in Guatemala who are unable to leave their relationship” constituted a\\ncognizable particular social group. As the BIA reasoned, “marital status can\\nbe an immutable characteristic where the individual is unable to leave the\\nrelationship.” Id. at 392–93. Moreover, the group possessed sufficient particu-\\nlarity because “[t]he terms used to describe [it]—‘married,’ ‘women,’ and\\n‘unable to leave the relationship’—ha[d] commonly accepted definitions within\\nGuatemalan society.” Id. at 393. Further delineating the group’s membership\\nwere “societal expectations about gender and subordination, as well as legal\\nconstraints regarding divorce and separation.” Id. In particular, the BIA\\nfound it “significant that the respondent [had] sought protection from her\\nspouse’s abuse and that the police [had] refused to assist her because they\\nwould not interfere in a marital relationship.” Id.\\n\\n 12\\n\\n No. 17-60753\\n The IJ reasonably determined that Honduran women unable to leave a\\ndomestic partnership was not a cognizable social group. Notably, W.M.V.C.\\nnever married Perez. Petitioners insist that the immutable trait in A-R-C-G-\\nwas not a person’s marital status but the inability to leave a relationship.\\nThough the BIA has clarified that “marital status should not be the determin-\\native factor in deciding a domestic violence asylum claim,” its decisions were\\nunpublished and hence “carr[ied] no precedential value.” 9 In the absence of\\nclearly established law to the contrary, the IJ reasonably refused to extend\\nA-R-C-G- to domestic partnerships. See Li, 505 F.3d at 920. That is especially\\nso given that W.M.V.C. identified no societal expectations or legal constraints\\nthat prevented her from leaving her relationship with Perez. 10 And unlike the\\nrespondent in A-R-C-G-, W.M.V.C. made no attempt to contact the Honduran\\nauthorities during her sixteen years of abuse.\\n\\n Nevertheless, the government offers no defense of the IJ’s alternative\\nholding that W.M.V.C.’s membership in her proposed social group was not a\\ncentral reason for the persecution. The BIA relied exclusively on that analysis\\nin affirming the denial of asylum and withholding of removal. Because the\\ngovernment has the burden to justify its “position in every stage of the pro-\\nceedings,” Baker, 839 F.2d at 1080, we assume—without deciding—that the\\nBIA’s conclusion was unreasonable.\\n\\n Equally important, the A-R-C-G- claim was a prominent issue here.\\nIndeed, it was the first argument made in petitioners’ brief before the BIA, and\\n\\n\\n 9 See Cardona v. Sessions, 848 F.3d 519, 523 n.5 (1st Cir. 2017) (describing the\\n“ongoing debate about the scope of . . . A-R-C-G-”). A-R-C-G- was overruled in its entirety\\nafter the motion to remand in this case. See A-B-, 27 I. & N. Dec. at 333.\\n 10 See Macias v. Sessions, 694 F. App’x 314, 314 (5th Cir. 2017) (per curiam) (holding\\nthat petitioner “had not shown that she was unable to leave her domestic relationship and\\ntherefore had not shown a reasonable fear of persecution based on membership in a social\\ngroup of Mexican women defined by that characteristic”).\\n 13\\n\\n No. 17-60753\\nit spanned eleven of the thirty-seven pages of argument. 11 Similarly, it ac-\\ncounted for seventeen out of the thirty-four pages in their opening brief before\\nthis court. Although the prominence of an issue certainly weighs in our\\nsubstantial-justification inquiry, the government’s stance on the A-R-C-G-\\nclaim was unreasonable, at most, at only one stage of the proceedings.\\n\\n 4.\\n The government also does not attempt to justify the agency’s denial of\\nthe claim that W.M.V.C. had a well-founded fear of future persecution based\\non her perceived homosexuality. We thus assume, without determining, that\\nthe agency’s dismissal of the sexual-orientation claim was unreasonable.\\n\\n Nonetheless, that claim was not a central issue and received less than\\ntwo pages of briefing before the BIA. As petitioners have acknowledged, most\\nof their claims “stem from past persecution”—not the threat of future abuse on\\naccount of W.M.V.C.’s perceived homosexuality. Because that issue did not\\n“constitute the substantive heart of this case,” the BIA’s ruling did not render\\nthe government’s overall position unreasonable. See Nken, 385 F. App’x\\nat 301–02.\\n\\n 5.\\n Petitioners chide the government for failing to seek remand once they\\nfiled their appeal or their motion for a stay of removal, which previewed the\\nvery arguments they would later make in their opening brief. Such unreason-\\nable delay, petitioners aver, forced them to brief the case on the merits, re-\\nsulting in the majority of the fees that they now request.\\n\\n\\n\\n 11 Cf. Amezola-Garcia, 835 F.3d at 555 (finding that a particular issue was not “prom-\\ninent” because it “made up only seven pages out of the twenty-five pages of argument in\\n[petitioner’s] brief, and it was the last argument made”).\\n 14\\n\\n No. 17-60753\\n That theory is unpersuasive. Though petitioners pressed the sexual-\\norientation claim in their stay motion, they also asserted that the agency had\\nerred in denying CAT protection and in concluding that none of their proposed\\nsocial groups was viable. As discussed above, however, the agency reasonably\\ndismissed the CAT and social-group claims. Considering petitioners’ claims\\nwere thus a mixed bag, the government’s litigation position was reasonable: It\\nneither opposed the motion to stay nor conceded error.\\n\\n * * * * *\\n In sum, the position of the United States was substantially justified. The\\ngovernment was the prevailing party on five out of the eight claims. And it\\nreasonably rejected CAT relief and held that petitioners’ proposed social group\\nwas not cognizable under A-R-C-G-. Therefore, at most, the BIA lacked justifi-\\ncation in dismissing the sexual-orientation claim and in finding that W.M.V.C.\\nhad failed to show persecution as a Honduran woman trapped in a domestic\\nrelationship. Naturally, “[a]ny given civil action can have numerous phases,”\\nand “the parties’ postures on individual matters may be more or less justified.”\\nJean, 496 U.S. at 161. But when viewed “as an inclusive whole,” the govern-\\nment’s position was substantially justified. Id. at 162. Petitioners are thus\\nineligible for an EAJA award.\\n\\n The petition for review is DENIED.\\n\\n\\n\\n\\n 15\\n\\n No. 17-60753\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412474/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}, {\"author\": \"KING, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"KING, Circuit Judge, dissenting:\\n W.M.V.C. and A.P.V. prevailed on their petition for review. They are\\nthus entitled to an attorney fee unless the Government’s position “was\\nsubstantially justified.” 28 U.S.C. § 2412(d)(1)(A). The Government all but\\nconcedes that its opposition to the petitioners’ perceived-homosexuality asylum\\nclaim was not substantially justified. 1 Nevertheless, the majority concludes\\nthat the Government’s position as a whole was substantially justified because\\nthe Government made reasonable arguments in opposition to the petitioners’\\nalternative grounds for relief. I disagree. The Government’s position was that\\nthe petitioners must be removed from the United States. That the Government\\nwas wrong for only one of several possible reasons does not make its position\\nany more justified as a whole. I would grant the petitioners’ motion for an\\nattorney fee.\\n In weighing a motion for an attorney fee under the Equal Access to\\nJustice Act (“EAJA”), we must identify the Government’s “overall position” and\\nask whether that position was substantially justified. Roanoke River Basin\\nAss’n v. Hudson, 991 F.2d 132, 140 (4th Cir. 1993). In certain cases more\\ncomplex than the one at bar, identifying the Government’s overall position can\\npose a confounding challenge. See, e.g., United States v. 515 Granby, LLC, 736\\nF.3d 309, 317 (4th Cir. 2013). But this hand-wringing is not needed here; the\\nGovernment’s position is readily identifiable without breaking the case into\\n\\n\\n\\n\\n 1The Government does not argue that its position with respect to the petitioners’\\nperceived-homosexuality argument was substantially justified. The Government has the\\nburden of showing that its position was substantially justified, Sims v. Apfel, 238 F.3d 597,\\n602 (5th Cir. 2001), so its failure to defend its position on the perceived-homosexuality\\nargument resolves that issue for the sake of this motion. The majority does not assert\\notherwise.\\n 16\\n\\n No. 17-60753\\n“atomized line items,” as the Supreme Court has cautioned us against.\\nComm’r, INS v. Jean, 496 U.S. 154, 161-62 (1990).\\n The majority stumbles by confusing alternative arguments with\\nseparable challenges to discrete governmental actions. The Government here\\ndid not “ma[k]e multiple determinations,” as the majority asserts. If that were\\nso, then I would agree with the majority’s decision to identify the most\\nprominent issues and consider whether the Government’s positions with\\nrespect to those issues were substantially justified. See, e.g., Amezola-Garcia\\nv. Lynch, 835 F.3d 553, 555 (6th Cir. 2016) (considering whether Government’s\\ndenial of withholding of removal or denial of voluntary removal was more\\nprominent action driving litigation). But the Government made only one\\ndetermination here—that the petitioners must be removed. And when a\\nlitigant challenging a single administrative determination does so with\\nalternative arguments, the success on any one of which requires a complete\\nremand to the agency, most courts focus only on the Government’s position\\nwith respect to the litigant’s winning argument. See Glenn v. Comm’r of Soc.\\nSec., 763 F.3d 494, 499 (6th Cir. 2014) (“The inclusion of three unsuccessful\\nclaims in Glenn’s petition for review did not undermine the inevitability of\\nremand.”); Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007)\\n(“[T]he fact that the Commissioner prevailed in the district court on most\\nissues did not alter the fact that she acted unreasonably in denying benefits at\\nthe administrative level.”); Air Transp. Ass’n of Can. v. FAA, 156 F.3d 1329,\\n1332 (D.C. Cir. 1998) (“[I]t cannot be the case that Congress intended that a\\nparty who prevails on an essential ground of a petition to set aside government\\naction cannot recover the congressionally contemplated fees because the\\n\\n\\n\\n\\n 17\\n\\n No. 17-60753\\ngovernment’s action was substantially unjustified on only one of several\\npossible bases.”). 2\\n This approach best achieves the EAJA’s “specific statutory goals of\\nencouraging private parties to vindicate their rights and ‘curbing excessive\\nregulation and the unreasonable exercise of Government authority.’” Jean, 496\\nU.S. at 164-65 (quoting H.R. Rep. No. 96-1418, at 12 (1980)). In penalizing the\\npetitioners for challenging their deportation, the majority’s approach will\\ndiscourage future litigants from challenging unreasonable exercises of\\ngovernmental power because the litigants might get stuck with the cost of\\ndoing so if the Government can reasonably oppose a substantial enough\\nalternative argument.\\n To the extent litigants do challenge unreasonable governmental actions,\\nI fear the majority’s approach will perversely disincentivize litigants from\\nmaking alternative arguments. Under the majority’s approach, a litigant is\\nbest advised to stick only to its strongest argument, lest a weaker (though\\nperhaps still winning) alternative argument be deemed more prominent. After\\n\\n\\n\\n 2 Admittedly, one case supports the majority’s approach. See Gatimi v. Holder, 606\\nF.3d 344, 349-50 (7th Cir. 2010). But Gatimi carries little persuasive value. The court cited\\nno authority for the proposition that the Government’s position on the more prominent of two\\nindividually sufficient alternative arguments should constitute its overall position in a\\nlitigation. See id. Nor did the court provide any further analysis considering the wisdom of\\nthis approach or acknowledge that its approach directly conflicted with the Tenth Circuit’s\\nanalysis in Hackett. See id. I would not follow it without independent justification.\\n To the extent the majority views its opinion as falling on the heavier-trafficked side\\nof a circuit split, it is incorrect. Of the numerous cases the majority cites, only Gatimi takes\\nthe majority’s totality approach when addressing individually sufficient alternative\\narguments challenging a single governmental action. Hackett and Glenn directly contradict\\nthe majority’s position, while the other cases the majority cites do not squarely confront the\\nquestion currently before us. Thus, the majority stands alone with the Seventh Circuit, while\\nI would join the Sixth, Tenth, and D.C. Circuits. Although I would do so for better reasons\\nthan nose-counting alone.\\n 18\\n\\n No. 17-60753\\nall, if the petitioners in this case had raised only their perceived-homosexuality\\nargument, then under the majority’s approach, they would have been entitled\\nto an EAJA award. “But litigation is not an exact science. In some cases, the\\nlawyer’s flagship argument may not carry the day, while the court embraces a\\nsecondary argument the lawyer rated less favorably.” Goos v. Nat’l Ass’n of\\nRealtors, 68 F.3d 1380, 1386 (D.C. Cir. 1995). As the en banc Ninth Circuit\\nrecently recognized, penalizing attorneys (especially those relying on an EAJA\\naward for their compensation) for making alternative arguments “would put\\nlawyers in an untenable ethical position.” Ibrahim v. U.S. Dep’t of Homeland\\nSec., 912 F.3d 1147, 1176 (9th Cir. 2019) (en banc); see also Hensley v.\\nEckerhart, 461 U.S. 424, 435 (1983) (“Litigants in good faith may raise\\nalternative legal grounds for a desired outcome, and the court’s rejection of or\\nfailure to reach certain grounds is not a sufficient reason for reducing a fee.\\nThe result is what matters.” (emphasis added)).\\n Awarding an attorney fee here would not render undue harm to the\\npublic fisc. The rule for which I advocate would award an EAJA fee only when\\nthe Government could have avoided the litigation altogether by acting\\nreasonably. Here, if the Government had recognized the weakness of its\\nopposition to the petitioners’ perceived-homosexuality argument earlier, it\\ncould have granted them asylum (or at least developed a sounder basis for\\ndenying asylum) and saved them the substantial sum of money they spent\\ndeveloping their opening brief.\\n For these reasons, I would conclude the Government’s position in this\\ncase was not substantially justified and award the petitioners an attorney fee.\\nI respectfully dissent.\\n\\n\\n\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412474/\", \"author_raw\": \"KING, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"SMITH\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4635221/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: W. M. v. C. v. William Barr, U.S. Atty Gen\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-28\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nREVISED June 28, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-60753 June 7, 2019\n Lyle W. Cayce\n Clerk\nW.M.V.C.; A.P.V.,\n\n Petitioners,\n\nversus\n\nWILLIAM P. BARR, U.S. Attorney General,\n\n Respondent.\n\n\n\n Petition for Review of an Order of\n the Board of Immigration Appeals\n\n\n\n\nBefore KING, SMITH, and WILLETT, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n W.M.V.C. and her daughter A.P.V. are Honduran immigrants who\nappealed the dismissal of their applications for asylum and withholding of\nremoval. We granted the government’s motion to remand to allow the Board\nof Immigration Appeals (“BIA”) to consider the issues raised in the petitioners’\nopening brief. Petitioners seek to recover attorneys’ fees and expenses under\nthe Equal Access to Justice Act (“EAJA”). Because the government’s position\nas a whole was substantially justified, we deny the petition for review.\n\n No. 17-60753\n I.\n In 1999, W.M.V.C. began work as a housekeeper for Angelica Perez, who\nsoon professed her love for W.M.V.C. and forcibly insisted that they live to-\ngether in a romantic relationship. For the next sixteen years, Perez frequently\nraped and abused W.M.V.C.—sometimes in front of W.M.V.C.’s two children.\nPerez also regularly beat the children and threatened to kill W.M.V.C.’s family\nif she attempted to leave. To prevent the possibility of escape, Perez locked the\ndoor and windows anytime she left the house. W.M.V.C. attempted to escape\ntwice, but her efforts incurred only greater mistreatment.\n\n Despite the continual violence, W.M.V.C. never contacted the police,\nmany of whom were close friends with Perez. As a retired officer, Perez fre-\nquently invited her former colleagues to her home for drinks. On those occa-\nsions, the police observed Perez locking W.M.V.C. and the children in a back-\nroom yet failed to intervene. Once, when W.M.V.C.’s brother filed a complaint\nagainst Perez for nearly hitting W.M.V.C.’s sister with a car, the police took\nPerez into custody. But they soon released her, advising her to kill W.M.V.C.’s\nsiblings if they continued to meddle in her affairs.\n\n As the years passed, rumors began to percolate that Perez and W.M.V.C.\nwere romantically involved. Neighbors discussed “how disgusting it was that\n[W.M.V.C.] lived with another woman” and how “rape would fix her.” After a\ngang member threatened to kill W.M.V.C. in an effort to extort money, she\nmade one final attempt to escape. When petitioners succeeded in fleeing to the\nUnited States in 2015, Perez created a fictitious Facebook account for her un-\nwilling lover, ostensibly professing W.M.V.C.’s affections for Perez.\n\n Petitioners applied for asylum and withholding of removal. W.M.V.C.\nmaintained that she had a well-founded fear of future persecution in Honduras\nbased on her perceived homosexuality and anti-gang political opinion.\n\n 2\n\n No. 17-60753\nMoreover, she averred that she had been persecuted on account of her\nmembership in four particular social groups: (1) Honduran women unable to\nleave a domestic relationship; (2) Honduran women viewed as property by\nvirtue of their status in a domestic relationship; (3) Honduran women without\na male protector; and (4) Honduran female business managers without a male\npartner. Finally, W.M.V.C. sought protection under the Convention Against\nTorture (“CAT”), alleging that the Honduran police were willfully blind to\nPerez’s abuse.\n\n In her independent application, A.P.V. rehashed many of those same\nclaims. She also alleged persecution as a member of W.M.V.C.’s nuclear fam-\nily. All told, petitioners advanced eight distinct grounds for asylum and with-\nholding of removal.\n\n The immigration judge (“IJ”) found petitioners “generally credible” but\ndenied their applications. Though recognizing that homosexual individuals\nmay constitute a cognizable particular social group, the IJ concluded that\n“[Perez’s] abusive behavior was not motivated by any alleged perception that\n[W.M.V.C.] was homosexual.” The IJ determined that petitioners’ other pro-\nposed social groups were not viable and that, even if they were, petitioners had\nnot demonstrated persecution on account of their membership in those groups\nor imputed political opinion. In denying CAT relief, the IJ reasoned that the\npolice were neither “aware of any torture” nor “operating under color of law”\nduring their social visits to Perez’s home. As a result, the IJ found no proof\nthat Honduran police acting in their official capacity would participate or\nacquiesce in petitioners’ alleged torture.\n\n The BIA affirmed. Without addressing whether the proposed social\ngroups were cognizable, the BIA determined that petitioners had not encoun-\ntered any past—and would not face any future—harm based on their\n\n 3\n\n No. 17-60753\nmembership in those groups or their political persuasion. The BIA further held\nthat the officers had observed no torture when visiting Perez’s home in their\npersonal capacity.\n\n We granted petitioners’ unopposed motion for a stay of removal pending\nthis petition for review. In their opening brief, they contended that the agency\nhad failed to respond to the substance of the sexual-orientation claim and to\nconsider evidence offered in support thereof. Specifically, petitioners high-\nlighted that the agency never addressed whether W.M.V.C. had a legitimate\nfear of violence from others besides Perez. They also challenged the agency’s\nconclusion that because Perez’s abuse had coincided with her drinking and\nbecause “persons may commit uncharacteristic acts and say uncommon things”\nwhen inebriated, W.M.V.C. never faced persecution for being a Honduran\nwoman unable to leave a domestic partnership. Lastly, petitioners urged that\nthe BIA had ignored significant evidence showing that the Honduran authori-\nties had been aware of the torture but had refused to intervene.\n\n Rather than file a brief in response, the government moved to remand to\nconsider the issues raised in petitioners’ opening brief. Yet the government\ninsisted that its motion was not a concession of error and asked that each party\nbear its own fees and costs. We granted the motion but denied the request that\neach party pay its own costs. Petitioners then applied for attorneys’ fees and\nexpenses under the EAJA.\n\n II.\n Under the “American Rule,” each party ordinarily bears its own attor-\nneys’ fees unless Congress has explicitly authorized otherwise. Hensley v.\nEckerhart, 461 U.S. 424, 429 (1983). The EAJA provides such authorization.\nIt awards attorneys’ fees and other expenses to a prevailing party in a civil\naction against the United States. See 28 U.S.C. § 2412(d)(1)(A). As “a partial\n 4\n\n No. 17-60753\nwaiver of sovereign immunity,” the EAJA is “strictly construed in favor of the\nUnited States.” Ardestani v. INS, 502 U.S. 129, 137 (1991). But once an\nindividual plaintiff establishes that he is a prevailing party “whose net worth\ndid not exceed $2,000,000 at the time the civil action was filed,” 28 U.S.C.\n§ 2412(d)(2)(B), “the government must pay attorney’s fees unless it is able to\nprove that its position was substantially justified or special circumstances\nmake an award unjust.” Baker v. Bowen, 839 F.2d 1075, 1080 (5th Cir. 1988).\n\n The “position of the United States” encompasses both “the position taken\nby the United States in the civil action” and “the action or failure to act by the\nagency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). The\ngovernment’s position thus includes the underlying decisions of the BIA and\nthe IJ as well as “the government’s litigation position defending the agency\naction.” Sylejmani v. Barr, No. 16-60556, 2019 WL 1590905, at *4 (5th Cir.\nApr. 12, 2019) (per curiam) (unpublished).\n\n “Substantially justified” does not mean “‘justified to a high degree,’ but\nrather ‘justified in substance or in the main’—that is, justified to a degree that\ncould satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565\n(1988). Although “[t]his standard is not overly stringent,” Sylejmani, 2019 WL\n1590905, at *4 (citation omitted), the government must do more than show it\nis “merely undeserving of sanctions for frivolousness,” Underwood, 487 U.S.\nat 566. Instead, it bears “the burden of showing that its position in every stage\nof the proceedings . . . had a reasonable basis both in law and fact.” Baker,\n839 F.2d at 1080. “The mere fact that the government lost—even if the re-\nviewing court held it acted unreasonably or arbitrary and capriciously—does\nnot alone demonstrate that its position was not substantially justified.”\nSylejmani, 2019 WL 1590905, at *4. Especially where the case involves a novel\nquestion on which there is little precedent, courts are chary of finding the\n\n 5\n\n No. 17-60753\ngovernment’s position unreasonable. 1\n\n The government does not contest that petitioners are prevailing parties\nwhose net worth is under the statutory cap. 2 Nor does it dispute that special\ncircumstances make an EAJA award unjust. See 28 U.S.C. § 2412(d)(1)(A).\nInstead, the government maintains that petitioners are not entitled to attor-\nneys’ fees because its position was substantially justified. Without defending\nits stance on W.M.V.C.’s sexual-orientation claim, the government asserts the\nagency reasonably denied CAT protection and rejected, under In re A-R-C-G-,\n26 I. & N. Dec. 388 (BIA 2014), overruled by In re A-B-, 27 I. & N. Dec. 316\n(A.G. 2018), the proposed social group of Honduran women unable to leave a\ndomestic relationship. Because its posture on those two issues was reasonable,\nthe government contends that its position, in toto, was substantially justified.\n\n A.\n This case requires us to decide whether the government’s position was\nsubstantially justified where the agency made multiple determinations—some\nof which were reasonable and others that were not. That question “has proved\nto be an issue of considerable conceptual and practical difficulty.” Roanoke\nRiver Basin Ass’n v. Hudson, 991 F.2d 132, 138 (4th Cir. 1993) (citation omit-\nted). The closest the Supreme Court has come to addressing it was in\n\n\n 1E.g., Sylejmani, 2019 WL 1590905, at *6 (concluding that the government was sub-\nstantially justified in “addressing this ‘novel and difficult’ issue” (citation omitted)); accord\nSaysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010); Li v. Keisler, 505 F.3d 913, 920 (9th Cir.\n2007); Washington v. Heckler, 756 F.2d 959, 961–62 (3d Cir. 1985).\n 2 A prevailing party is “one who has succeeded on any significant claim affording it\nsome of the relief sought.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.\n782, 791 (1989). Because petitioners sought a remand to the BIA, our decision to grant such\nrelief constitutes a “judicially sanctioned change in the legal relationship of the parties” that\nentitles petitioners to prevailing party status. Buckhannon Bd. & Care Home, Inc. v. W. Va.\nDep’t of Health & Human Res., 532 U.S. 598, 605 (2001); see also Kellems v. Astrue, 628 F.3d\n215, 216 (5th Cir. 2010) (“The district court’s remand made [the plaintiff] a ‘prevailing party’\nfor purposes of the EAJA.”).\n 6\n\n No. 17-60753\nCommissioner, INS v. Jean, 496 U.S. 154 (1990).\n\n In Jean, the government’s position in the underlying litigation lacked\njustification. But because its opposition to the application for fees was rea-\nsonable, the government posited that the prevailing party could not recover\nfees incurred during the fee-determination phase. Id. at 156–57. The Court\ndisagreed. Noting that the EAJA “refer[s] to ‘the position of the United States’\nin the singular,” id. at 159 (quoting 28 U.S.C. § 2412(d)(1)(A)), the Court ex-\nplained that the statute “favors treating a case as an inclusive whole, rather\nthan as atomized line-items,” id. at 161–62. Hence, it concluded that fees may\nbe awarded for all phases of the case even though the government was substan-\ntially justified in disputing the fee award. Id. at 162. Simply put, “[t]he single\nfinding that the Government’s position lacks substantial justification . . .\noperates as a one-time threshold for fee eligibility.” Id. at 160.\n\n Admittedly, Jean “did not squarely resolve how to determine whether\nthe government’s position . . . was substantially justified when it loses on only\none issue.” 3 That is because Jean spoke “to the grouping of various stages of\nlitigation” but did not directly address “whether the position of the government\ncompels all claims to be grouped for the analysis.” EEOC v. Memphis Health\nCtr., Inc., 526 F. App’x 607, 614 (6th Cir. 2013) (emphasis added).\n\n Nevertheless, Jean has persuaded most circuit courts to award EAJA\nfees only where the government’s position as a whole lacked substantial justi-\nfication. 4 In making that determination, courts focus on the prominence of the\n\n\n\n 3 Roanoke River Basin, 991 F.2d at 138; see also Gatimi v. Holder, 606 F.3d 344, 350\n(7th Cir. 2010) (cautioning against “tak[ing] judicial language” in Jean “out of context”).\n 4Indeed, some courts consider the totality of the circumstances and eschew a claim-\nby-claim analysis of the government’s position. See Ibrahim v. U.S. Dep’t of Homeland Sec.,\n912 F.3d 1147, 1168–69 & n.16 (9th Cir. 2019) (en banc); United States v. Hurt, 676 F.3d 649,\n652 (8th Cir. 2012); Saysana, 614 F.3d at 6; Senville v. Madison, 331 F. App’x 848, 849 (2d\n 7\n\n No. 17-60753\nissues on which the government was substantially justified—rather than\nmerely comparing the rote number of reasonable and unreasonable claims in\na single case. 5 Relatedly, courts emphasize the government’s prelitigation con-\nduct when assessing the reasonableness of its overall position. See United\nStates v. 515 Granby, LLC, 736 F.3d 309, 316 (4th Cir. 2013) (collecting cases).\n\n In contrast, only the D.C. Circuit has rejected “a ‘holistic approach’ to\ndetermining whether an agency’s position is substantially justified.” See Air\nTransp. Ass’n of Can. v. FAA, 156 F.3d 1329, 1332 (D.C. Cir. 1998). As the\ncourt elaborated, “[v]irtually any government action is . . . grouped with other\nactions,” and “[p]resumably the government is usually substantially justified\non most of its actions.” Id. But if a prevailing party “cannot recover EAJA fees\nbecause of this well-nigh universal grouping,” the court warned, “then Con-\ngress’s enactment of the EAJA becomes a virtual nullity.” Id. Consequently,\nthe D.C. Circuit views “the relevant ‘position’ of the government [a]s that which\ncorresponds to the claim or aspect of the case on which the private party\nprevailed.” Jacobs v. Schiffer, 204 F.3d 259, 264 (D.C. Cir. 2000).\n\n Although that approach has some intuitive appeal, the D.C. Circuit has\nnot grappled with—much less mentioned—Jean’s command to “treat[] a case\nas an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S.\nat 162. Accordingly, we join the vast majority of our sister circuits in evalu-\n\n\n\n\nCir. 2009); Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007); Roanoke River\nBasin, 991 F.2d at 139. Alternatively, other courts preliminarily canvas the government’s\nstance on each claim before assessing whether its position, in toto, was substantially justified.\nSee Memphis Health Ctr., 526 F. App’x at 615; Gatimi, 606 F.3d at 349–50; United States v.\nJones, 125 F.3d 1418, 1429 (11th Cir. 1997); Hanover Potato Prods., Inc. v. Shalala, 989 F.2d\n123, 131 (3d Cir. 1993).\n 5 See, e.g., Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir. 2016); Gatimi,\n606 F.3d at 350; Nken v. Holder, 385 F. App’x 299, 301–02 (4th Cir. 2010) (per curiam);\nHackett, 475 F.3d at 1173 n.1.\n 8\n\n No. 17-60753\nating the government’s position under the totality of the circumstances. Pro-\nvided the government’s position as a whole was reasonable, a prevailing party\nmay not recover EAJA fees even though some of the government’s actions or\narguments were without merit.\n\n B.\n Attorneys’ fees are unwarranted because the government was the pre-\nvailing party on the bulk of petitioners’ claims and was substantially justified\nin denying CAT protection. At most, the government’s position on the\nA-R-C-G- claim lacked justification at only one stage of the proceedings.\nThough the government does not defend the agency’s rejection of the sexual-\norientation claim, that issue was not a prominent matter in this case. Hence,\nwhen viewed in the aggregate, the position of the United States was\nreasonable.\n\n 1.\n Petitioners applied for asylum and withholding of removal on eight\ndistinct grounds. 6 But they appealed the agency’s rulings only on the CAT,\nA-R-C-G-, and sexual-orientation claims. Consequently, they have waived\ntheir challenge on the other five claims. 7 Because the government therefore\n\n\n\n 6 W.M.V.C. claimed protection under the CAT and maintained that she had been per-\nsecuted or had a well-founded fear of future persecution as a (1) perceived homosexual;\n(2) political opponent of criminal gangs; (3) Honduran woman unable to leave a domestic\nrelationship; (4) Honduran woman viewed as property by virtue of her status in a domestic\nrelationship; (5) Honduran woman without a male protector; and (6) Honduran female busi-\nness manager without a male partner. A.P.V. asserted many of those same claims and\nalleged that she had been persecuted as a nuclear family member of W.M.V.C’s.\n 7 In a footnote, petitioners sought to “preserve their right . . . on remand” to contest\nthe BIA’s rejection of their other claims for relief. Nevertheless, “[a]rguments that are\ninsufficiently addressed in the body of the brief . . . are waived.” See, e.g., Bridas S.A.P.I.C.\nv. Gov’t of Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003) (finding waiver where\nplaintiffs attempted to raise an argument in a footnote).\n 9\n\n No. 17-60753\nprevailed on those issues, its position on them was substantially justified. 8\n\n 2.\n An alien seeking CAT protection must establish that (1) “it [is] more\nlikely than not that [he] will be tortured upon return to his homeland” and\n(2) “there [is] sufficient state action involved in that torture.” Garcia v. Holder,\n756 F.3d 885, 891 (5th Cir. 2014). “Torture is an extreme form of cruel and\ninhuman treatment . . . .” 8 C.F.R. § 208.18(a)(2). It includes “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally inflicted\non a person for such purposes as . . . intimidating or coercing him . . . , or for\nany reason based on discrimination of any kind.” Id. § 208.18(a)(1).\n\n To warrant relief under the CAT, the torture must occur “by, or with the\nacquiescence of, government officials acting under the color of law.” Hakim v.\nHolder, 628 F.3d 151, 155 (5th Cir. 2010). An “official acquiesces to torture\nwhen he or she has prior awareness of such activity and thereafter breaches\nhis or her legal responsibility to intervene.” Iruegas-Valdez v. Yates, 846 F.3d\n806, 812 (5th Cir. 2017) (cleaned up). Acquiescence may be under color of law\neven if it does not represent “officially sanctioned state action.” Garcia,\n756 F.3d at 891. Instead, we consider whether the official’s conduct “consti-\ntutes a misuse of power, possessed by virtue of state law and made possible\nonly because the wrongdoer is clothed with the authority of state law.” Id.\n\n The agency reasonably found no evidence that Honduran officials acting\nunder color of law would participate or acquiesce in petitioners’ alleged torture.\nAfter all, petitioners averred that the police had seen Perez lock W.M.V.C. in\n\n\n\n 8 See Amezola-Garcia, 835 F.3d at 555 (finding substantial justification where the gov-\nernment “successfully argued” the majority of the claims on appeal); Senville, 331 F. App’x\nat 849 (affirming denial of attorneys’ fees where the agency “prevailed ‘on by far the majority\nof the issues posed by the lawsuit’”).\n 10\n\n No. 17-60753\na room yet failed to intervene. But it is not apparent—and petitioners cite no\ncase clearly establishing—that temporarily cloistering someone in a room con-\nstitutes the “extreme form of cruel and inhuman treatment” necessary to trig-\nger CAT relief. See 8 C.F.R. § 208.18(a)(2).\n\n Additionally, because the officers’ visits to Perez’s home were of a purely\nsocial nature, it is not obvious that the police were acting under color of law.\nCiting Laughlin v. Olszewski, 102 F.3d 190, 192 n.1 (5th Cir. 1996), petitioners\nurge that “[w]hether a police officer is acting under color of law does not depend\non his on-or-off-duty status at the time of the alleged violation.” But in Laugh-\nlin, we held that an officer had acted under color of law in identifying himself\nas a Houston police officer and “threaten[ing] to use the authority conveyed to\nhim by virtue of his status to arrest [the plaintiff].” Id. Conversely, there is\nno indication that the Honduran police misused their official capacity to harm\npetitioners during their social visits.\n\n Petitioners fault the agency for not considering that the one time Perez\nwas arrested for reckless driving, the police soon released her. More alarm-\ningly, the police purportedly advised Perez to kill W.M.V.C.’s siblings if they\ncontinued to interfere. Yet once again, reckless driving likely does not amount\nto torture. Because the Honduran authorities did not appear to acquiesce to\nany known acts of torture, the agency’s denial of CAT protection “had a reason-\nable basis both in law and fact.” Baker, 839 F.2d at 1080.\n\n 3.\n To qualify for asylum, an alien must show that (1) he “is outside of his\ncountry and is unable or unwilling to return because of persecution or a well-\nfounded fear of persecution,” and (2) “race, religion, nationality, membership\nin a particular social group, or political opinion was or will be at least one cen-\ntral reason for the persecution.” Orellana-Monson v. Holder, 685 F.3d 511, 518\n 11\n\n No. 17-60753\n(5th Cir. 2012) (cleaned up). The standard for obtaining withholding of re-\nmoval is more stringent than that for asylum, “requiring a showing that it is\nmore likely than not that the alien’s life or freedom would be threatened by\npersecution on one of those grounds.” Id.\n\n Three factors guide our recognition of a particular social group. First,\nthe group must consist of persons who “share a common immutable character-\nistic that they either cannot change or should not be required to change be-\ncause it is fundamental to their individual identities or consciences.”\nHernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) (cleaned\nup). Second, the “shared characteristic” must render the group socially visible\nor distinct, enabling “a society [to] perceive those with the characteristic in\nquestion as members of a social group.” Id. (citation omitted). Third, the group\nmust “be defined with sufficient particularity to delimit its membership . . . as\na discrete class of persons.” Id. at 786–87 (cleaned up).\n\n In A-R-C-G-, 26 I. & N. Dec. at 388–89, the BIA held that “married\nwomen in Guatemala who are unable to leave their relationship” constituted a\ncognizable particular social group. As the BIA reasoned, “marital status can\nbe an immutable characteristic where the individual is unable to leave the\nrelationship.” Id. at 392–93. Moreover, the group possessed sufficient particu-\nlarity because “[t]he terms used to describe [it]—‘married,’ ‘women,’ and\n‘unable to leave the relationship’—ha[d] commonly accepted definitions within\nGuatemalan society.” Id. at 393. Further delineating the group’s membership\nwere “societal expectations about gender and subordination, as well as legal\nconstraints regarding divorce and separation.” Id. In particular, the BIA\nfound it “significant that the respondent [had] sought protection from her\nspouse’s abuse and that the police [had] refused to assist her because they\nwould not interfere in a marital relationship.” Id.\n\n 12\n\n No. 17-60753\n The IJ reasonably determined that Honduran women unable to leave a\ndomestic partnership was not a cognizable social group. Notably, W.M.V.C.\nnever married Perez. Petitioners insist that the immutable trait in A-R-C-G-\nwas not a person’s marital status but the inability to leave a relationship.\nThough the BIA has clarified that “marital status should not be the determin-\native factor in deciding a domestic violence asylum claim,” its decisions were\nunpublished and hence “carr[ied] no precedential value.” 9 In the absence of\nclearly established law to the contrary, the IJ reasonably refused to extend\nA-R-C-G- to domestic partnerships. See Li, 505 F.3d at 920. That is especially\nso given that W.M.V.C. identified no societal expectations or legal constraints\nthat prevented her from leaving her relationship with Perez. 10 And unlike the\nrespondent in A-R-C-G-, W.M.V.C. made no attempt to contact the Honduran\nauthorities during her sixteen years of abuse.\n\n Nevertheless, the government offers no defense of the IJ’s alternative\nholding that W.M.V.C.’s membership in her proposed social group was not a\ncentral reason for the persecution. The BIA relied exclusively on that analysis\nin affirming the denial of asylum and withholding of removal. Because the\ngovernment has the burden to justify its “position in every stage of the pro-\nceedings,” Baker, 839 F.2d at 1080, we assume—without deciding—that the\nBIA’s conclusion was unreasonable.\n\n Equally important, the A-R-C-G- claim was a prominent issue here.\nIndeed, it was the first argument made in petitioners’ brief before the BIA, and\n\n\n 9 See Cardona v. Sessions, 848 F.3d 519, 523 n.5 (1st Cir. 2017) (describing the\n“ongoing debate about the scope of . . . A-R-C-G-”). A-R-C-G- was overruled in its entirety\nafter the motion to remand in this case. See A-B-, 27 I. & N. Dec. at 333.\n 10 See Macias v. Sessions, 694 F. App’x 314, 314 (5th Cir. 2017) (per curiam) (holding\nthat petitioner “had not shown that she was unable to leave her domestic relationship and\ntherefore had not shown a reasonable fear of persecution based on membership in a social\ngroup of Mexican women defined by that characteristic”).\n 13\n\n No. 17-60753\nit spanned eleven of the thirty-seven pages of argument. 11 Similarly, it ac-\ncounted for seventeen out of the thirty-four pages in their opening brief before\nthis court. Although the prominence of an issue certainly weighs in our\nsubstantial-justification inquiry, the government’s stance on the A-R-C-G-\nclaim was unreasonable, at most, at only one stage of the proceedings.\n\n 4.\n The government also does not attempt to justify the agency’s denial of\nthe claim that W.M.V.C. had a well-founded fear of future persecution based\non her perceived homosexuality. We thus assume, without determining, that\nthe agency’s dismissal of the sexual-orientation claim was unreasonable.\n\n Nonetheless, that claim was not a central issue and received less than\ntwo pages of briefing before the BIA. As petitioners have acknowledged, most\nof their claims “stem from past persecution”—not the threat of future abuse on\naccount of W.M.V.C.’s perceived homosexuality. Because that issue did not\n“constitute the substantive heart of this case,” the BIA’s ruling did not render\nthe government’s overall position unreasonable. See Nken, 385 F. App’x\nat 301–02.\n\n 5.\n Petitioners chide the government for failing to seek remand once they\nfiled their appeal or their motion for a stay of removal, which previewed the\nvery arguments they would later make in their opening brief. Such unreason-\nable delay, petitioners aver, forced them to brief the case on the merits, re-\nsulting in the majority of the fees that they now request.\n\n\n\n 11 Cf. Amezola-Garcia, 835 F.3d at 555 (finding that a particular issue was not “prom-\ninent” because it “made up only seven pages out of the twenty-five pages of argument in\n[petitioner’s] brief, and it was the last argument made”).\n 14\n\n No. 17-60753\n That theory is unpersuasive. Though petitioners pressed the sexual-\norientation claim in their stay motion, they also asserted that the agency had\nerred in denying CAT protection and in concluding that none of their proposed\nsocial groups was viable. As discussed above, however, the agency reasonably\ndismissed the CAT and social-group claims. Considering petitioners’ claims\nwere thus a mixed bag, the government’s litigation position was reasonable: It\nneither opposed the motion to stay nor conceded error.\n\n * * * * *\n In sum, the position of the United States was substantially justified. The\ngovernment was the prevailing party on five out of the eight claims. And it\nreasonably rejected CAT relief and held that petitioners’ proposed social group\nwas not cognizable under A-R-C-G-. Therefore, at most, the BIA lacked justifi-\ncation in dismissing the sexual-orientation claim and in finding that W.M.V.C.\nhad failed to show persecution as a Honduran woman trapped in a domestic\nrelationship. Naturally, “[a]ny given civil action can have numerous phases,”\nand “the parties’ postures on individual matters may be more or less justified.”\nJean, 496 U.S. at 161. But when viewed “as an inclusive whole,” the govern-\nment’s position was substantially justified. Id. at 162. Petitioners are thus\nineligible for an EAJA award.\n\n The petition for review is DENIED.\n\n\n\n\n 15\n\n No. 17-60753\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: W. M. v. C. v. William Barr, U.S. Atty Gen\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-28\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nREVISED June 28, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-60753 June 7, 2019\\n Lyle W. Cayce\\n Clerk\\nW.M.V.C.; A.P.V.,\\n\\n Petitioners,\\n\\nversus\\n\\nWILLIAM P. BARR, U.S. Attorney General,\\n\\n Respondent.\\n\\n\\n\\n Petition for Review of an Order of\\n the Board of Immigration Appeals\\n\\n\\n\\n\\nBefore KING, SMITH, and WILLETT, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n W.M.V.C. and her daughter A.P.V. are Honduran immigrants who\\nappealed the dismissal of their applications for asylum and withholding of\\nremoval. We granted the government’s motion to remand to allow the Board\\nof Immigration Appeals (“BIA”) to consider the issues raised in the petitioners’\\nopening brief. Petitioners seek to recover attorneys’ fees and expenses under\\nthe Equal Access to Justice Act (“EAJA”). Because the government’s position\\nas a whole was substantially justified, we deny the petition for review.\\n\\n No. 17-60753\\n I.\\n In 1999, W.M.V.C. began work as a housekeeper for Angelica Perez, who\\nsoon professed her love for W.M.V.C. and forcibly insisted that they live to-\\ngether in a romantic relationship. For the next sixteen years, Perez frequently\\nraped and abused W.M.V.C.—sometimes in front of W.M.V.C.’s two children.\\nPerez also regularly beat the children and threatened to kill W.M.V.C.’s family\\nif she attempted to leave. To prevent the possibility of escape, Perez locked the\\ndoor and windows anytime she left the house. W.M.V.C. attempted to escape\\ntwice, but her efforts incurred only greater mistreatment.\\n\\n Despite the continual violence, W.M.V.C. never contacted the police,\\nmany of whom were close friends with Perez. As a retired officer, Perez fre-\\nquently invited her former colleagues to her home for drinks. On those occa-\\nsions, the police observed Perez locking W.M.V.C. and the children in a back-\\nroom yet failed to intervene. Once, when W.M.V.C.’s brother filed a complaint\\nagainst Perez for nearly hitting W.M.V.C.’s sister with a car, the police took\\nPerez into custody. But they soon released her, advising her to kill W.M.V.C.’s\\nsiblings if they continued to meddle in her affairs.\\n\\n As the years passed, rumors began to percolate that Perez and W.M.V.C.\\nwere romantically involved. Neighbors discussed “how disgusting it was that\\n[W.M.V.C.] lived with another woman” and how “rape would fix her.” After a\\ngang member threatened to kill W.M.V.C. in an effort to extort money, she\\nmade one final attempt to escape. When petitioners succeeded in fleeing to the\\nUnited States in 2015, Perez created a fictitious Facebook account for her un-\\nwilling lover, ostensibly professing W.M.V.C.’s affections for Perez.\\n\\n Petitioners applied for asylum and withholding of removal. W.M.V.C.\\nmaintained that she had a well-founded fear of future persecution in Honduras\\nbased on her perceived homosexuality and anti-gang political opinion.\\n\\n 2\\n\\n No. 17-60753\\nMoreover, she averred that she had been persecuted on account of her\\nmembership in four particular social groups: (1) Honduran women unable to\\nleave a domestic relationship; (2) Honduran women viewed as property by\\nvirtue of their status in a domestic relationship; (3) Honduran women without\\na male protector; and (4) Honduran female business managers without a male\\npartner. Finally, W.M.V.C. sought protection under the Convention Against\\nTorture (“CAT”), alleging that the Honduran police were willfully blind to\\nPerez’s abuse.\\n\\n In her independent application, A.P.V. rehashed many of those same\\nclaims. She also alleged persecution as a member of W.M.V.C.’s nuclear fam-\\nily. All told, petitioners advanced eight distinct grounds for asylum and with-\\nholding of removal.\\n\\n The immigration judge (“IJ”) found petitioners “generally credible” but\\ndenied their applications. Though recognizing that homosexual individuals\\nmay constitute a cognizable particular social group, the IJ concluded that\\n“[Perez’s] abusive behavior was not motivated by any alleged perception that\\n[W.M.V.C.] was homosexual.” The IJ determined that petitioners’ other pro-\\nposed social groups were not viable and that, even if they were, petitioners had\\nnot demonstrated persecution on account of their membership in those groups\\nor imputed political opinion. In denying CAT relief, the IJ reasoned that the\\npolice were neither “aware of any torture” nor “operating under color of law”\\nduring their social visits to Perez’s home. As a result, the IJ found no proof\\nthat Honduran police acting in their official capacity would participate or\\nacquiesce in petitioners’ alleged torture.\\n\\n The BIA affirmed. Without addressing whether the proposed social\\ngroups were cognizable, the BIA determined that petitioners had not encoun-\\ntered any past—and would not face any future—harm based on their\\n\\n 3\\n\\n No. 17-60753\\nmembership in those groups or their political persuasion. The BIA further held\\nthat the officers had observed no torture when visiting Perez’s home in their\\npersonal capacity.\\n\\n We granted petitioners’ unopposed motion for a stay of removal pending\\nthis petition for review. In their opening brief, they contended that the agency\\nhad failed to respond to the substance of the sexual-orientation claim and to\\nconsider evidence offered in support thereof. Specifically, petitioners high-\\nlighted that the agency never addressed whether W.M.V.C. had a legitimate\\nfear of violence from others besides Perez. They also challenged the agency’s\\nconclusion that because Perez’s abuse had coincided with her drinking and\\nbecause “persons may commit uncharacteristic acts and say uncommon things”\\nwhen inebriated, W.M.V.C. never faced persecution for being a Honduran\\nwoman unable to leave a domestic partnership. Lastly, petitioners urged that\\nthe BIA had ignored significant evidence showing that the Honduran authori-\\nties had been aware of the torture but had refused to intervene.\\n\\n Rather than file a brief in response, the government moved to remand to\\nconsider the issues raised in petitioners’ opening brief. Yet the government\\ninsisted that its motion was not a concession of error and asked that each party\\nbear its own fees and costs. We granted the motion but denied the request that\\neach party pay its own costs. Petitioners then applied for attorneys’ fees and\\nexpenses under the EAJA.\\n\\n II.\\n Under the “American Rule,” each party ordinarily bears its own attor-\\nneys’ fees unless Congress has explicitly authorized otherwise. Hensley v.\\nEckerhart, 461 U.S. 424, 429 (1983). The EAJA provides such authorization.\\nIt awards attorneys’ fees and other expenses to a prevailing party in a civil\\naction against the United States. See 28 U.S.C. § 2412(d)(1)(A). As “a partial\\n 4\\n\\n No. 17-60753\\nwaiver of sovereign immunity,” the EAJA is “strictly construed in favor of the\\nUnited States.” Ardestani v. INS, 502 U.S. 129, 137 (1991). But once an\\nindividual plaintiff establishes that he is a prevailing party “whose net worth\\ndid not exceed $2,000,000 at the time the civil action was filed,” 28 U.S.C.\\n§ 2412(d)(2)(B), “the government must pay attorney’s fees unless it is able to\\nprove that its position was substantially justified or special circumstances\\nmake an award unjust.” Baker v. Bowen, 839 F.2d 1075, 1080 (5th Cir. 1988).\\n\\n The “position of the United States” encompasses both “the position taken\\nby the United States in the civil action” and “the action or failure to act by the\\nagency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). The\\ngovernment’s position thus includes the underlying decisions of the BIA and\\nthe IJ as well as “the government’s litigation position defending the agency\\naction.” Sylejmani v. Barr, No. 16-60556, 2019 WL 1590905, at *4 (5th Cir.\\nApr. 12, 2019) (per curiam) (unpublished).\\n\\n “Substantially justified” does not mean “‘justified to a high degree,’ but\\nrather ‘justified in substance or in the main’—that is, justified to a degree that\\ncould satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565\\n(1988). Although “[t]his standard is not overly stringent,” Sylejmani, 2019 WL\\n1590905, at *4 (citation omitted), the government must do more than show it\\nis “merely undeserving of sanctions for frivolousness,” Underwood, 487 U.S.\\nat 566. Instead, it bears “the burden of showing that its position in every stage\\nof the proceedings . . . had a reasonable basis both in law and fact.” Baker,\\n839 F.2d at 1080. “The mere fact that the government lost—even if the re-\\nviewing court held it acted unreasonably or arbitrary and capriciously—does\\nnot alone demonstrate that its position was not substantially justified.”\\nSylejmani, 2019 WL 1590905, at *4. Especially where the case involves a novel\\nquestion on which there is little precedent, courts are chary of finding the\\n\\n 5\\n\\n No. 17-60753\\ngovernment’s position unreasonable. 1\\n\\n The government does not contest that petitioners are prevailing parties\\nwhose net worth is under the statutory cap. 2 Nor does it dispute that special\\ncircumstances make an EAJA award unjust. See 28 U.S.C. § 2412(d)(1)(A).\\nInstead, the government maintains that petitioners are not entitled to attor-\\nneys’ fees because its position was substantially justified. Without defending\\nits stance on W.M.V.C.’s sexual-orientation claim, the government asserts the\\nagency reasonably denied CAT protection and rejected, under In re A-R-C-G-,\\n26 I. & N. Dec. 388 (BIA 2014), overruled by In re A-B-, 27 I. & N. Dec. 316\\n(A.G. 2018), the proposed social group of Honduran women unable to leave a\\ndomestic relationship. Because its posture on those two issues was reasonable,\\nthe government contends that its position, in toto, was substantially justified.\\n\\n A.\\n This case requires us to decide whether the government’s position was\\nsubstantially justified where the agency made multiple determinations—some\\nof which were reasonable and others that were not. That question “has proved\\nto be an issue of considerable conceptual and practical difficulty.” Roanoke\\nRiver Basin Ass’n v. Hudson, 991 F.2d 132, 138 (4th Cir. 1993) (citation omit-\\nted). The closest the Supreme Court has come to addressing it was in\\n\\n\\n 1E.g., Sylejmani, 2019 WL 1590905, at *6 (concluding that the government was sub-\\nstantially justified in “addressing this ‘novel and difficult’ issue” (citation omitted)); accord\\nSaysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010); Li v. Keisler, 505 F.3d 913, 920 (9th Cir.\\n2007); Washington v. Heckler, 756 F.2d 959, 961–62 (3d Cir. 1985).\\n 2 A prevailing party is “one who has succeeded on any significant claim affording it\\nsome of the relief sought.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.\\n782, 791 (1989). Because petitioners sought a remand to the BIA, our decision to grant such\\nrelief constitutes a “judicially sanctioned change in the legal relationship of the parties” that\\nentitles petitioners to prevailing party status. Buckhannon Bd. & Care Home, Inc. v. W. Va.\\nDep’t of Health & Human Res., 532 U.S. 598, 605 (2001); see also Kellems v. Astrue, 628 F.3d\\n215, 216 (5th Cir. 2010) (“The district court’s remand made [the plaintiff] a ‘prevailing party’\\nfor purposes of the EAJA.”).\\n 6\\n\\n No. 17-60753\\nCommissioner, INS v. Jean, 496 U.S. 154 (1990).\\n\\n In Jean, the government’s position in the underlying litigation lacked\\njustification. But because its opposition to the application for fees was rea-\\nsonable, the government posited that the prevailing party could not recover\\nfees incurred during the fee-determination phase. Id. at 156–57. The Court\\ndisagreed. Noting that the EAJA “refer[s] to ‘the position of the United States’\\nin the singular,” id. at 159 (quoting 28 U.S.C. § 2412(d)(1)(A)), the Court ex-\\nplained that the statute “favors treating a case as an inclusive whole, rather\\nthan as atomized line-items,” id. at 161–62. Hence, it concluded that fees may\\nbe awarded for all phases of the case even though the government was substan-\\ntially justified in disputing the fee award. Id. at 162. Simply put, “[t]he single\\nfinding that the Government’s position lacks substantial justification . . .\\noperates as a one-time threshold for fee eligibility.” Id. at 160.\\n\\n Admittedly, Jean “did not squarely resolve how to determine whether\\nthe government’s position . . . was substantially justified when it loses on only\\none issue.” 3 That is because Jean spoke “to the grouping of various stages of\\nlitigation” but did not directly address “whether the position of the government\\ncompels all claims to be grouped for the analysis.” EEOC v. Memphis Health\\nCtr., Inc., 526 F. App’x 607, 614 (6th Cir. 2013) (emphasis added).\\n\\n Nevertheless, Jean has persuaded most circuit courts to award EAJA\\nfees only where the government’s position as a whole lacked substantial justi-\\nfication. 4 In making that determination, courts focus on the prominence of the\\n\\n\\n\\n 3 Roanoke River Basin, 991 F.2d at 138; see also Gatimi v. Holder, 606 F.3d 344, 350\\n(7th Cir. 2010) (cautioning against “tak[ing] judicial language” in Jean “out of context”).\\n 4Indeed, some courts consider the totality of the circumstances and eschew a claim-\\nby-claim analysis of the government’s position. See Ibrahim v. U.S. Dep’t of Homeland Sec.,\\n912 F.3d 1147, 1168–69 & n.16 (9th Cir. 2019) (en banc); United States v. Hurt, 676 F.3d 649,\\n652 (8th Cir. 2012); Saysana, 614 F.3d at 6; Senville v. Madison, 331 F. App’x 848, 849 (2d\\n 7\\n\\n No. 17-60753\\nissues on which the government was substantially justified—rather than\\nmerely comparing the rote number of reasonable and unreasonable claims in\\na single case. 5 Relatedly, courts emphasize the government’s prelitigation con-\\nduct when assessing the reasonableness of its overall position. See United\\nStates v. 515 Granby, LLC, 736 F.3d 309, 316 (4th Cir. 2013) (collecting cases).\\n\\n In contrast, only the D.C. Circuit has rejected “a ‘holistic approach’ to\\ndetermining whether an agency’s position is substantially justified.” See Air\\nTransp. Ass’n of Can. v. FAA, 156 F.3d 1329, 1332 (D.C. Cir. 1998). As the\\ncourt elaborated, “[v]irtually any government action is . . . grouped with other\\nactions,” and “[p]resumably the government is usually substantially justified\\non most of its actions.” Id. But if a prevailing party “cannot recover EAJA fees\\nbecause of this well-nigh universal grouping,” the court warned, “then Con-\\ngress’s enactment of the EAJA becomes a virtual nullity.” Id. Consequently,\\nthe D.C. Circuit views “the relevant ‘position’ of the government [a]s that which\\ncorresponds to the claim or aspect of the case on which the private party\\nprevailed.” Jacobs v. Schiffer, 204 F.3d 259, 264 (D.C. Cir. 2000).\\n\\n Although that approach has some intuitive appeal, the D.C. Circuit has\\nnot grappled with—much less mentioned—Jean’s command to “treat[] a case\\nas an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S.\\nat 162. Accordingly, we join the vast majority of our sister circuits in evalu-\\n\\n\\n\\n\\nCir. 2009); Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007); Roanoke River\\nBasin, 991 F.2d at 139. Alternatively, other courts preliminarily canvas the government’s\\nstance on each claim before assessing whether its position, in toto, was substantially justified.\\nSee Memphis Health Ctr., 526 F. App’x at 615; Gatimi, 606 F.3d at 349–50; United States v.\\nJones, 125 F.3d 1418, 1429 (11th Cir. 1997); Hanover Potato Prods., Inc. v. Shalala, 989 F.2d\\n123, 131 (3d Cir. 1993).\\n 5 See, e.g., Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir. 2016); Gatimi,\\n606 F.3d at 350; Nken v. Holder, 385 F. App’x 299, 301–02 (4th Cir. 2010) (per curiam);\\nHackett, 475 F.3d at 1173 n.1.\\n 8\\n\\n No. 17-60753\\nating the government’s position under the totality of the circumstances. Pro-\\nvided the government’s position as a whole was reasonable, a prevailing party\\nmay not recover EAJA fees even though some of the government’s actions or\\narguments were without merit.\\n\\n B.\\n Attorneys’ fees are unwarranted because the government was the pre-\\nvailing party on the bulk of petitioners’ claims and was substantially justified\\nin denying CAT protection. At most, the government’s position on the\\nA-R-C-G- claim lacked justification at only one stage of the proceedings.\\nThough the government does not defend the agency’s rejection of the sexual-\\norientation claim, that issue was not a prominent matter in this case. Hence,\\nwhen viewed in the aggregate, the position of the United States was\\nreasonable.\\n\\n 1.\\n Petitioners applied for asylum and withholding of removal on eight\\ndistinct grounds. 6 But they appealed the agency’s rulings only on the CAT,\\nA-R-C-G-, and sexual-orientation claims. Consequently, they have waived\\ntheir challenge on the other five claims. 7 Because the government therefore\\n\\n\\n\\n 6 W.M.V.C. claimed protection under the CAT and maintained that she had been per-\\nsecuted or had a well-founded fear of future persecution as a (1) perceived homosexual;\\n(2) political opponent of criminal gangs; (3) Honduran woman unable to leave a domestic\\nrelationship; (4) Honduran woman viewed as property by virtue of her status in a domestic\\nrelationship; (5) Honduran woman without a male protector; and (6) Honduran female busi-\\nness manager without a male partner. A.P.V. asserted many of those same claims and\\nalleged that she had been persecuted as a nuclear family member of W.M.V.C’s.\\n 7 In a footnote, petitioners sought to “preserve their right . . . on remand” to contest\\nthe BIA’s rejection of their other claims for relief. Nevertheless, “[a]rguments that are\\ninsufficiently addressed in the body of the brief . . . are waived.” See, e.g., Bridas S.A.P.I.C.\\nv. Gov’t of Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003) (finding waiver where\\nplaintiffs attempted to raise an argument in a footnote).\\n 9\\n\\n No. 17-60753\\nprevailed on those issues, its position on them was substantially justified. 8\\n\\n 2.\\n An alien seeking CAT protection must establish that (1) “it [is] more\\nlikely than not that [he] will be tortured upon return to his homeland” and\\n(2) “there [is] sufficient state action involved in that torture.” Garcia v. Holder,\\n756 F.3d 885, 891 (5th Cir. 2014). “Torture is an extreme form of cruel and\\ninhuman treatment . . . .” 8 C.F.R. § 208.18(a)(2). It includes “any act by which\\nsevere pain or suffering, whether physical or mental, is intentionally inflicted\\non a person for such purposes as . . . intimidating or coercing him . . . , or for\\nany reason based on discrimination of any kind.” Id. § 208.18(a)(1).\\n\\n To warrant relief under the CAT, the torture must occur “by, or with the\\nacquiescence of, government officials acting under the color of law.” Hakim v.\\nHolder, 628 F.3d 151, 155 (5th Cir. 2010). An “official acquiesces to torture\\nwhen he or she has prior awareness of such activity and thereafter breaches\\nhis or her legal responsibility to intervene.” Iruegas-Valdez v. Yates, 846 F.3d\\n806, 812 (5th Cir. 2017) (cleaned up). Acquiescence may be under color of law\\neven if it does not represent “officially sanctioned state action.” Garcia,\\n756 F.3d at 891. Instead, we consider whether the official’s conduct “consti-\\ntutes a misuse of power, possessed by virtue of state law and made possible\\nonly because the wrongdoer is clothed with the authority of state law.” Id.\\n\\n The agency reasonably found no evidence that Honduran officials acting\\nunder color of law would participate or acquiesce in petitioners’ alleged torture.\\nAfter all, petitioners averred that the police had seen Perez lock W.M.V.C. in\\n\\n\\n\\n 8 See Amezola-Garcia, 835 F.3d at 555 (finding substantial justification where the gov-\\nernment “successfully argued” the majority of the claims on appeal); Senville, 331 F. App’x\\nat 849 (affirming denial of attorneys’ fees where the agency “prevailed ‘on by far the majority\\nof the issues posed by the lawsuit’”).\\n 10\\n\\n No. 17-60753\\na room yet failed to intervene. But it is not apparent—and petitioners cite no\\ncase clearly establishing—that temporarily cloistering someone in a room con-\\nstitutes the “extreme form of cruel and inhuman treatment” necessary to trig-\\nger CAT relief. See 8 C.F.R. § 208.18(a)(2).\\n\\n Additionally, because the officers’ visits to Perez’s home were of a purely\\nsocial nature, it is not obvious that the police were acting under color of law.\\nCiting Laughlin v. Olszewski, 102 F.3d 190, 192 n.1 (5th Cir. 1996), petitioners\\nurge that “[w]hether a police officer is acting under color of law does not depend\\non his on-or-off-duty status at the time of the alleged violation.” But in Laugh-\\nlin, we held that an officer had acted under color of law in identifying himself\\nas a Houston police officer and “threaten[ing] to use the authority conveyed to\\nhim by virtue of his status to arrest [the plaintiff].” Id. Conversely, there is\\nno indication that the Honduran police misused their official capacity to harm\\npetitioners during their social visits.\\n\\n Petitioners fault the agency for not considering that the one time Perez\\nwas arrested for reckless driving, the police soon released her. More alarm-\\ningly, the police purportedly advised Perez to kill W.M.V.C.’s siblings if they\\ncontinued to interfere. Yet once again, reckless driving likely does not amount\\nto torture. Because the Honduran authorities did not appear to acquiesce to\\nany known acts of torture, the agency’s denial of CAT protection “had a reason-\\nable basis both in law and fact.” Baker, 839 F.2d at 1080.\\n\\n 3.\\n To qualify for asylum, an alien must show that (1) he “is outside of his\\ncountry and is unable or unwilling to return because of persecution or a well-\\nfounded fear of persecution,” and (2) “race, religion, nationality, membership\\nin a particular social group, or political opinion was or will be at least one cen-\\ntral reason for the persecution.” Orellana-Monson v. Holder, 685 F.3d 511, 518\\n 11\\n\\n No. 17-60753\\n(5th Cir. 2012) (cleaned up). The standard for obtaining withholding of re-\\nmoval is more stringent than that for asylum, “requiring a showing that it is\\nmore likely than not that the alien’s life or freedom would be threatened by\\npersecution on one of those grounds.” Id.\\n\\n Three factors guide our recognition of a particular social group. First,\\nthe group must consist of persons who “share a common immutable character-\\nistic that they either cannot change or should not be required to change be-\\ncause it is fundamental to their individual identities or consciences.”\\nHernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) (cleaned\\nup). Second, the “shared characteristic” must render the group socially visible\\nor distinct, enabling “a society [to] perceive those with the characteristic in\\nquestion as members of a social group.” Id. (citation omitted). Third, the group\\nmust “be defined with sufficient particularity to delimit its membership . . . as\\na discrete class of persons.” Id. at 786–87 (cleaned up).\\n\\n In A-R-C-G-, 26 I. & N. Dec. at 388–89, the BIA held that “married\\nwomen in Guatemala who are unable to leave their relationship” constituted a\\ncognizable particular social group. As the BIA reasoned, “marital status can\\nbe an immutable characteristic where the individual is unable to leave the\\nrelationship.” Id. at 392–93. Moreover, the group possessed sufficient particu-\\nlarity because “[t]he terms used to describe [it]—‘married,’ ‘women,’ and\\n‘unable to leave the relationship’—ha[d] commonly accepted definitions within\\nGuatemalan society.” Id. at 393. Further delineating the group’s membership\\nwere “societal expectations about gender and subordination, as well as legal\\nconstraints regarding divorce and separation.” Id. In particular, the BIA\\nfound it “significant that the respondent [had] sought protection from her\\nspouse’s abuse and that the police [had] refused to assist her because they\\nwould not interfere in a marital relationship.” Id.\\n\\n 12\\n\\n No. 17-60753\\n The IJ reasonably determined that Honduran women unable to leave a\\ndomestic partnership was not a cognizable social group. Notably, W.M.V.C.\\nnever married Perez. Petitioners insist that the immutable trait in A-R-C-G-\\nwas not a person’s marital status but the inability to leave a relationship.\\nThough the BIA has clarified that “marital status should not be the determin-\\native factor in deciding a domestic violence asylum claim,” its decisions were\\nunpublished and hence “carr[ied] no precedential value.” 9 In the absence of\\nclearly established law to the contrary, the IJ reasonably refused to extend\\nA-R-C-G- to domestic partnerships. See Li, 505 F.3d at 920. That is especially\\nso given that W.M.V.C. identified no societal expectations or legal constraints\\nthat prevented her from leaving her relationship with Perez. 10 And unlike the\\nrespondent in A-R-C-G-, W.M.V.C. made no attempt to contact the Honduran\\nauthorities during her sixteen years of abuse.\\n\\n Nevertheless, the government offers no defense of the IJ’s alternative\\nholding that W.M.V.C.’s membership in her proposed social group was not a\\ncentral reason for the persecution. The BIA relied exclusively on that analysis\\nin affirming the denial of asylum and withholding of removal. Because the\\ngovernment has the burden to justify its “position in every stage of the pro-\\nceedings,” Baker, 839 F.2d at 1080, we assume—without deciding—that the\\nBIA’s conclusion was unreasonable.\\n\\n Equally important, the A-R-C-G- claim was a prominent issue here.\\nIndeed, it was the first argument made in petitioners’ brief before the BIA, and\\n\\n\\n 9 See Cardona v. Sessions, 848 F.3d 519, 523 n.5 (1st Cir. 2017) (describing the\\n“ongoing debate about the scope of . . . A-R-C-G-”). A-R-C-G- was overruled in its entirety\\nafter the motion to remand in this case. See A-B-, 27 I. & N. Dec. at 333.\\n 10 See Macias v. Sessions, 694 F. App’x 314, 314 (5th Cir. 2017) (per curiam) (holding\\nthat petitioner “had not shown that she was unable to leave her domestic relationship and\\ntherefore had not shown a reasonable fear of persecution based on membership in a social\\ngroup of Mexican women defined by that characteristic”).\\n 13\\n\\n No. 17-60753\\nit spanned eleven of the thirty-seven pages of argument. 11 Similarly, it ac-\\ncounted for seventeen out of the thirty-four pages in their opening brief before\\nthis court. Although the prominence of an issue certainly weighs in our\\nsubstantial-justification inquiry, the government’s stance on the A-R-C-G-\\nclaim was unreasonable, at most, at only one stage of the proceedings.\\n\\n 4.\\n The government also does not attempt to justify the agency’s denial of\\nthe claim that W.M.V.C. had a well-founded fear of future persecution based\\non her perceived homosexuality. We thus assume, without determining, that\\nthe agency’s dismissal of the sexual-orientation claim was unreasonable.\\n\\n Nonetheless, that claim was not a central issue and received less than\\ntwo pages of briefing before the BIA. As petitioners have acknowledged, most\\nof their claims “stem from past persecution”—not the threat of future abuse on\\naccount of W.M.V.C.’s perceived homosexuality. Because that issue did not\\n“constitute the substantive heart of this case,” the BIA’s ruling did not render\\nthe government’s overall position unreasonable. See Nken, 385 F. App’x\\nat 301–02.\\n\\n 5.\\n Petitioners chide the government for failing to seek remand once they\\nfiled their appeal or their motion for a stay of removal, which previewed the\\nvery arguments they would later make in their opening brief. Such unreason-\\nable delay, petitioners aver, forced them to brief the case on the merits, re-\\nsulting in the majority of the fees that they now request.\\n\\n\\n\\n 11 Cf. Amezola-Garcia, 835 F.3d at 555 (finding that a particular issue was not “prom-\\ninent” because it “made up only seven pages out of the twenty-five pages of argument in\\n[petitioner’s] brief, and it was the last argument made”).\\n 14\\n\\n No. 17-60753\\n That theory is unpersuasive. Though petitioners pressed the sexual-\\norientation claim in their stay motion, they also asserted that the agency had\\nerred in denying CAT protection and in concluding that none of their proposed\\nsocial groups was viable. As discussed above, however, the agency reasonably\\ndismissed the CAT and social-group claims. Considering petitioners’ claims\\nwere thus a mixed bag, the government’s litigation position was reasonable: It\\nneither opposed the motion to stay nor conceded error.\\n\\n * * * * *\\n In sum, the position of the United States was substantially justified. The\\ngovernment was the prevailing party on five out of the eight claims. And it\\nreasonably rejected CAT relief and held that petitioners’ proposed social group\\nwas not cognizable under A-R-C-G-. Therefore, at most, the BIA lacked justifi-\\ncation in dismissing the sexual-orientation claim and in finding that W.M.V.C.\\nhad failed to show persecution as a Honduran woman trapped in a domestic\\nrelationship. Naturally, “[a]ny given civil action can have numerous phases,”\\nand “the parties’ postures on individual matters may be more or less justified.”\\nJean, 496 U.S. at 161. But when viewed “as an inclusive whole,” the govern-\\nment’s position was substantially justified. Id. at 162. Petitioners are thus\\nineligible for an EAJA award.\\n\\n The petition for review is DENIED.\\n\\n\\n\\n\\n 15\\n\\n No. 17-60753\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2477,"cells":{"id":{"kind":"number","value":4635446,"string":"4,635,446"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Waste Management of Louisiana v. River Birch, Inco"},"decision_date":{"kind":"string","value":"2019-06-28"},"docket_number":{"kind":"string","value":"18-30139"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, COSTA, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n No. 18-30139\\n\\n\\nWASTE MANAGEMENT OF LOUISIANA, L.L.C.,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nRIVER BIRCH, INCORPORATED; ALBERT J. WARD, JR.; FREDERICK R.\\nHEEBE; HIGHWAY 90, L.L.C.,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore DAVIS, COSTA, and OLDHAM, Circuit Judges.\\nPER CURIAM:\\n\\n ON PETITION FOR PANEL AND EN BANC REHEARING\\n\\n Treating the Petition for Rehearing En Banc as a Petition for Panel\\nRehearing, we note that Defendants did not cite or rely on Matsushita Electric\\nIndustrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), in the district court\\nor to the panel. We therefore decline to consider that case now. Both the\\nmajority and the dissent agree that the issue in this case is factual, more\\nparticularly, what inferences can or will be drawn by the jury from the\\nevidence.\\n\\n The majority continues to adhere to its view that fact issues are\\npresented that preclude summary judgment. The dissent disagrees and would\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412699/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"COSTA\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4635446/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Waste Management of Louisiana v. River Birch, Inco\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n No. 18-30139\n\n\nWASTE MANAGEMENT OF LOUISIANA, L.L.C.,\n\n Plaintiff - Appellant\n\nv.\n\nRIVER BIRCH, INCORPORATED; ALBERT J. WARD, JR.; FREDERICK R.\nHEEBE; HIGHWAY 90, L.L.C.,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore DAVIS, COSTA, and OLDHAM, Circuit Judges.\nPER CURIAM:\n\n ON PETITION FOR PANEL AND EN BANC REHEARING\n\n Treating the Petition for Rehearing En Banc as a Petition for Panel\nRehearing, we note that Defendants did not cite or rely on Matsushita Electric\nIndustrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), in the district court\nor to the panel. We therefore decline to consider that case now. Both the\nmajority and the dissent agree that the issue in this case is factual, more\nparticularly, what inferences can or will be drawn by the jury from the\nevidence.\n\n The majority continues to adhere to its view that fact issues are\npresented that preclude summary judgment. The dissent disagrees and would\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Waste Management of Louisiana v. River Birch, Inco\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n No. 18-30139\\n\\n\\nWASTE MANAGEMENT OF LOUISIANA, L.L.C.,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nRIVER BIRCH, INCORPORATED; ALBERT J. WARD, JR.; FREDERICK R.\\nHEEBE; HIGHWAY 90, L.L.C.,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore DAVIS, COSTA, and OLDHAM, Circuit Judges.\\nPER CURIAM:\\n\\n ON PETITION FOR PANEL AND EN BANC REHEARING\\n\\n Treating the Petition for Rehearing En Banc as a Petition for Panel\\nRehearing, we note that Defendants did not cite or rely on Matsushita Electric\\nIndustrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), in the district court\\nor to the panel. We therefore decline to consider that case now. Both the\\nmajority and the dissent agree that the issue in this case is factual, more\\nparticularly, what inferences can or will be drawn by the jury from the\\nevidence.\\n\\n The majority continues to adhere to its view that fact issues are\\npresented that preclude summary judgment. The dissent disagrees and would\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2478,"cells":{"id":{"kind":"number","value":8444021,"string":"8,444,021"},"name":{"kind":"string","value":"WASTE MANAGEMENT OF LOUISIANA, L.L.C. v. RIVER BIRCH, INCORPORATED Albert J. Ward, Jr. Frederick R. Heebe Highway 90, L.L.C."},"name_abbreviation":{"kind":"string","value":"Waste Mgmt. of La., L. L.C. v. River Birch, Inc."},"decision_date":{"kind":"string","value":"2019-06-28"},"docket_number":{"kind":"string","value":"No. 18-30139"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415457/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444021/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: WASTE MANAGEMENT OF LOUISIANA, L.L.C. v. RIVER BIRCH, INCORPORATED Albert J. Ward, Jr. Frederick R. Heebe Highway 90, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-06-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: WASTE MANAGEMENT OF LOUISIANA, L.L.C. v. RIVER BIRCH, INCORPORATED Albert J. Ward, Jr. Frederick R. Heebe Highway 90, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-06-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2479,"cells":{"id":{"kind":"number","value":4625640,"string":"4,625,640"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Donald Cory MYERS, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Donald Myers"},"decision_date":{"kind":"string","value":"2019-06-03"},"docket_number":{"kind":"string","value":"18-5099"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Griffin, White, Bush\", \"parties\": \"\", \"opinions\": [{\"author\": \"HELENE N. WHITE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0112p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\nUNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-5099\\n v. │\\n │\\n │\\nDONALD CORY MYERS, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee at Winchester.\\n No. 4:17-cr-00005-1—Travis R. McDonough, District Judge.\\n\\n Argued: January 31, 2019\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,\\nINC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES\\nATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Gianna Maio,\\nFEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,\\nTennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,\\nKnoxville, Tennessee, for Appellee.\\n\\f No. 18-5099 United States v. Myers Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n HELENE N. WHITE, Circuit Judge.\\n\\n Defendant-Appellant Donald Myers challenges his 180-month sentence imposed under\\nthe Armed Career Criminal Act (ACCA) based on two prior Tennessee convictions for initiation\\nof a process intended to result in the manufacture of methamphetamine. Myers argues that the\\nTennessee initiation offense is not a serious drug offense under the ACCA. We AFFIRM.\\n\\n I. Background\\n\\n A. Factual Overview\\n\\n On August 24, 2016, Myers entered Kelly Sullivan’s home without permission, pulled\\nout a gun, pointed it at Sullivan, and demanded drugs. Sullivan told Myers that she had drugs in\\nher car and the two went outside. Once outside, Sullivan saw her neighbor Kristy Baker and\\nattempted to whisper to her to call the police. Myers then grabbed Sullivan and told Baker, “if\\nyou value this woman’s life, you will get me drugs.” (R. 28, PID 91.) Baker ran from the scene\\nand called the police, who soon arrived and arrested Myers.\\n Myers pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C.\\n§ 922(g)(1). The Pre-Sentence Investigation Report (PSR) recommended that Myers qualify as\\nan armed career criminal under the ACCA, 18 U.S.C. § 924(e), based on his prior Tennessee\\nconvictions for aggravated assault and two separate initiations of a process intended to result in\\nthe manufacture of methamphetamine.1 The PSR recommended the mandatory minimum\\nsentence of fifteen years’ imprisonment under the ACCA.\\n At sentencing, Myers objected to his classification as an armed career criminal, arguing\\nthat initiating a process intended to result in the manufacture of methamphetamine is not a\\n\\n 1On July 28, 2006, the Coffee County Circuit Court sentenced Myers to six years’ imprisonment for the\\naggravated assault. On May 11, 2011, the Coffee County Circuit Court sentenced Myers to eight years and six\\nmonths’ imprisonment for both initiation charges. Myers committed the first of these on November 25, 2010; Myers\\ncommitted the second offense on January 26, 2011. Both offenses carried a potential maximum sentence of ten\\nyears’ imprisonment or more.\\n\\f No. 18-5099 United States v. Myers Page 3\\n\\n\\n“serious drug” offense under the ACCA. The district court disagreed, concluding that the\\nconvictions qualify as ACCA predicates because initiating a process to manufacture\\nmethamphetamine involves manufacturing the drug. After finding that Myers is an armed career\\ncriminal, the district court sentenced him to the statutory mandatory minimum term of 180\\nmonths imprisonment and 3 years’ supervised release, and also imposed a special assessment of\\n$100. This timely appeal followed.\\n II. Discussion\\n\\n A. Standard of Review and Applicable Law\\n\\n The court reviews de novo whether a prior conviction is a “serious drug offense” under\\nthe ACCA. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013).\\n\\n To determine whether a particular offense qualifies as a serious drug offense, the court\\napplies a “categorical approach,” which looks “only to the statutory definitions—i.e., the\\nelements—of a defendant’s prior offenses, and not to the particular facts underlying those\\nconvictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks\\nand citation omitted). Further, the inquiry turns on the elements of the offense at issue, and not\\nthe label state law places on it. Taylor v. United States, 495 U.S. 575, 588-89 (1990) (“Congress\\nintended that the enhancement provision [of the ACCA] be triggered by crimes having certain\\nspecified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws\\nof the State of conviction.”).\\n\\n At issue is whether the district court properly applied the ACCA sentence enhancement,\\n18 U.S.C. § 924(e), which provides:\\n\\n (1) In the case of a person who violates section 922(g) of this title and has three\\n previous convictions by any court referred to in section 922(g)(1) of this title for a\\n violent felony or a serious drug offense, or both, committed on occasions different\\n from one another, such person shall be fined under this title and imprisoned not\\n less than fifteen years, and, notwithstanding any other provision of law, the court\\n shall not suspend the sentence of, or grant a probationary sentence to, such person\\n with respect to the conviction under section 922(g).\\n\\f No. 18-5099 United States v. Myers Page 4\\n\\n\\nAnd § 924(e)(2)(A) defines “serious drug offense” to mean:\\n\\n (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the\\n Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter\\n 705 of title 46, for which a maximum term of imprisonment of ten years or more\\n is prescribed by law; or\\n (ii) an offense under State law, involving manufacturing, distributing, or\\n possessing with intent to manufacture or distribute, a controlled substance (as\\n defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for\\n which a maximum term of imprisonment of ten years or more is prescribed by\\n law.\\n\\n The state offense at issue, the initiation of methamphetamine manufacture, is defined by\\nTennessee Code Annotated § 39-17-435:\\n\\n (a) It is an offense for a person to knowingly initiate a process intended to result\\n in the manufacture of any amount of methamphetamine.\\n (b) It shall not be a defense to a violation of this section that the chemical reaction\\n is not complete, that no methamphetamine was actually created, or that the\\n process would not actually create methamphetamine if completed.\\n (c) For purposes of this section, “initiates” means to begin the extraction of an\\n immediate methamphetamine precursor from a commercial product, to begin the\\n active modification of a commercial product for use in methamphetamine\\n creation, or to heat or combine any substance or substances that can be used in\\n methamphetamine creation.\\n\\nThese are the only means by which a defendant can be convicted of initiation of\\nmethamphetamine manufacture process under Tennessee law.\\n\\n B. Analysis\\n\\n A state conviction qualifies as “a serious drug offense” if it is an offense “involving\\nmanufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled\\nsubstance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for\\nwhich a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.\\n§ 924(e)(2)(A)(ii). There is no dispute that initiation of the methamphetamine manufacture\\nprocess carries a maximum term of ten years or more, and that methamphetamine is a listed\\ncontrolled substance. Tenn. Code Ann. § 39-17-435(f); § 40-35-111(b)(2) (prescribing a\\nmaximum “authorized term[] of imprisonment” of up to “thirty (30) years” for Class B felonies).\\n\\f No. 18-5099 United States v. Myers Page 5\\n\\n\\nThe sole issue on appeal is whether the initiation offense involves manufacturing\\nmethamphetamine.\\n\\n 1. United States v. Eason\\n\\n This court recently held in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), that the\\nrelated Tennessee offense of promoting methamphetamine manufacture, Tenn. Code Ann. § 39-\\n17-433, is a serious drug offense under the ACCA. After conducting the divisibility analysis\\nrequired by Descamps and Mathis v. United States, 136 S.Ct. 2243 (2016), the Eason court\\nconcluded that the least of the acts criminalized by the statute is the purchase of an ingredient\\nthat could be used to produce methamphetamine with reckless disregard of its intended use. 919\\nF.3d at 389. The court then analyzed whether such conduct “involves” the manufacture of\\nmethamphetamine so as to qualify as a serious drug offense under the ACCA.\\n\\n The panel noted that most other circuits have interpreted involving “as an ‘expansive\\nterm,’ which goes beyond the enumerated offenses and ‘requires only that the conviction be\\nrelated to or connected with drug manufacture, distribution, or possession, as opposed to\\nincluding those acts as an element of the offense.’” Id. at 390-91 (quoting United States v.\\nBynum, 669 F.3d 880, 886 (8th Cir. 2012) (internal quotation omitted)); (citing United States v.\\nGibbs, 656 F.3d 180, 185 (3d Cir. 2011) (“In adopting this position, we conform with all courts\\nof appeals that have addressed the scope of the definition of a serious drug offense.”); United\\nStates v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (“[I]nvolving means related to or connected\\nwith.” (citation and internal quotation marks omitted)); United States v. Alexander, 331 F.3d 116,\\n131 (D.C. Cir. 2003) (citing “related to or connected with” language); United States v. King, 325\\nF.3d 110, 113-114 (2d Cir. 2003) (“[I]nvolving has expansive connotations ... encompassing ...\\noffenses that are related to or connected with [distributing, manufacturing, or possessing.]”)).\\nBut, the Eason court also observed that the term “involving” has its limits, and that while the\\nterm “is not to be too narrowly read, it also is not to be too broadly read.” Id. (quoting United\\nStates v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006) (explaining that “[n]ot all offenses bearing\\nany sort of relationship with drug manufacturing, distribution, or possession with intent to\\nmanufacture or distribute will qualify as predicate offenses under ACCA. The relationship must\\nnot be too remote or tangential.”)).\\n\\f No. 18-5099 United States v. Myers Page 6\\n\\n\\n In addressing the “involving” test, the court explained:\\n\\n Here, the conduct prohibited [] relates to and is connected with the manufacture of\\n methamphetamine. Methamphetamine can be made largely from products\\n purchased over the counter. . . . Thus, the purchase of those ingredients is often an\\n essential first step in the drug’s manufacture. And to ensure that the statute\\n criminalizes only those purchases that relate to manufacture—for our purposes,\\n that they are not too tangential from manufacture—the Tennessee legislature\\n requires more: a person must purchase the ingredient with knowledge that it will\\n be used to produce methamphetamine, or with a “reckless disregard of [the\\n ingredient’s] intended use.”\\n\\nId. at 391-92.\\n\\n The Eason panel determined that both the minimal mens rea required (reckless disregard\\nof the ingredient’s intended use) and the action required (purchasing the prerequisite ingredient)\\nare sufficiently connected to the “methamphetamine’s ‘production, preparation, propagation,\\ncompounding or processing’” to make the promotion offense an offense that “involves” the\\nmanufacture of methamphetamine under the ACCA. Id. at 392 (quoting 21 U.S.C. § 802(15)\\n(defining manufacturing)).\\n\\n 2. Whether the Initiation of Methamphetamine Manufacture Process Is a\\n Serious Drug Offense Under the ACCA\\n\\n Although Myers’s prior convictions were of the initiation statute, rather than the\\npromoting statute, Eason dictates the outcome here. Myers argues that a person could be\\nconvicted under the Tennessee initiation statute without possessing, distributing, or “actually\\nstarting the process of manufacturing” any controlled substance under 18 U.S.C.\\n§ 924(e)(2)(A)(ii), (Appellant Br. at 13) and that a person can use thousands of legal,\\ncommonplace ingredients to make methamphetamine, including automotive and household\\nchemicals, like lighter fluid and lithium strips, many of which are not defined as controlled\\nsubstances under federal law. (Id. at 16-19) (citing State v. Dunn, 2016 WL 1446113 (Tenn.\\nCrim. App., April 12, 2016) for the proposition that a defendant has been convicted of initiation\\nfor possessing an opened cold compression pack, among other household materials).) Although\\nMyers acknowledges that courts have interpreted the phrase “involving” broadly, he maintains\\nthat the term as written “modifies the word ‘controlled substance,’” and since he never possessed\\n\\f No. 18-5099 United States v. Myers Page 7\\n\\n\\nor manufactured a controlled substance, his offense is not subject to the ACCA enhancement.\\n(Appellant Br. at 14-15 (emphasis in original).) But these objections apply to the promotion\\noffense as well, and were rejected by Eason, which held that simply purchasing an ingredient\\nthat could be used to produce methamphetamine with reckless disregard for its intended use\\nconstitutes an offense involving the manufacture of methamphetamine under the ACCA.\\n\\n The initiation statute here requires that a person “knowingly initiate a process intended to\\n. . . manufacture . . . methamphetamine,” which is accomplished by “begin[ning] the extraction\\nof an immediate methamphetamine precursor from a commercial product,” “begin[ning] the\\nactive modification of a commercial product for use in methamphetamine creation,” or\\n“heat[ing] or combin[ing] any substance or substances that can be used in methamphetamine\\ncreation.” Tenn. Code Ann. § 39-17-435. If purchasing a methamphetamine ingredient with\\nreckless disregard for its intended use involves the manufacture of methamphetamine, then\\nknowingly initiating a process intended to manufacture methamphetamine surely involves its\\nmanufacture as well.\\n\\n Myers is correct that a defendant could be convicted under the initiation statute although\\n“no chemical reaction would likely result, no controlled substances would be involved, and\\ncertainly no methamphetamine would be produced.” (Appellant Br. at 17). However, as Eason\\nmade clear, the Tennessee legislature’s intent to criminalize steps in the methamphetamine\\nmanufacturing process, including actions short of the actual manufacture of the drug, does not\\nremove the offenses from the ambit of the ACCA, provided they still involve the manufacture of\\nthe drug. Further, Tennessee cases have held that the initiation offense must be committed\\nknowingly. In State v. Banks, No. M2008–01823–CCA–R3–CD, 2010 WL 2943115, at *7\\n(Tenn. Crim. App. July 26, 2010), the court explained:\\n\\n Because the specific steps which comprise the initiation offense must be\\n undertaken ‘knowingly,’ a person who inadvertently heats or mixes substances\\n which are commonly used in the manufacture of methamphetamine, or purchases\\n an over-the-counter drug containing a prohibited substance would not be guilty of\\n a crime under the terms of the statute unless the state proved that the conduct was\\n undertaken with the intent to initiate a process that would lead to the production\\n of methamphetamine.\\n\\f No. 18-5099 United States v. Myers Page 8\\n\\n\\n By pleading guilty to two initiation offenses, Myers acknowledged that he knowingly\\ninitiated a process intended to result in the manufacture of methamphetamine. Because Myers\\nhad a violent felony conviction and two serious drug offense convictions, the district court did\\nnot err in sentencing him as an armed career criminal under the ACCA.\\n\\n III. Conclusion\\n\\n For the reasons above, we AFFIRM the district court’s application of the ACCA’s\\nsentencing enhancement.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402893/\", \"author_raw\": \"HELENE N. WHITE, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"GRIFFIN"},"judge2":{"kind":"string","value":"WHITE"},"judge3":{"kind":"string","value":"BUSH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625640/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Donald Cory MYERS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0112p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\nUNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-5099\n v. │\n │\n │\nDONALD CORY MYERS, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Tennessee at Winchester.\n No. 4:17-cr-00005-1—Travis R. McDonough, District Judge.\n\n Argued: January 31, 2019\n\n Decided and Filed: June 3, 2019\n\n Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,\nINC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES\nATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Gianna Maio,\nFEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,\nTennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,\nKnoxville, Tennessee, for Appellee.\n\f No. 18-5099 United States v. Myers Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n HELENE N. WHITE, Circuit Judge.\n\n Defendant-Appellant Donald Myers challenges his 180-month sentence imposed under\nthe Armed Career Criminal Act (ACCA) based on two prior Tennessee convictions for initiation\nof a process intended to result in the manufacture of methamphetamine. Myers argues that the\nTennessee initiation offense is not a serious drug offense under the ACCA. We AFFIRM.\n\n I. Background\n\n A. Factual Overview\n\n On August 24, 2016, Myers entered Kelly Sullivan’s home without permission, pulled\nout a gun, pointed it at Sullivan, and demanded drugs. Sullivan told Myers that she had drugs in\nher car and the two went outside. Once outside, Sullivan saw her neighbor Kristy Baker and\nattempted to whisper to her to call the police. Myers then grabbed Sullivan and told Baker, “if\nyou value this woman’s life, you will get me drugs.” (R. 28, PID 91.) Baker ran from the scene\nand called the police, who soon arrived and arrested Myers.\n Myers pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C.\n§ 922(g)(1). The Pre-Sentence Investigation Report (PSR) recommended that Myers qualify as\nan armed career criminal under the ACCA, 18 U.S.C. § 924(e), based on his prior Tennessee\nconvictions for aggravated assault and two separate initiations of a process intended to result in\nthe manufacture of methamphetamine.1 The PSR recommended the mandatory minimum\nsentence of fifteen years’ imprisonment under the ACCA.\n At sentencing, Myers objected to his classification as an armed career criminal, arguing\nthat initiating a process intended to result in the manufacture of methamphetamine is not a\n\n 1On July 28, 2006, the Coffee County Circuit Court sentenced Myers to six years’ imprisonment for the\naggravated assault. On May 11, 2011, the Coffee County Circuit Court sentenced Myers to eight years and six\nmonths’ imprisonment for both initiation charges. Myers committed the first of these on November 25, 2010; Myers\ncommitted the second offense on January 26, 2011. Both offenses carried a potential maximum sentence of ten\nyears’ imprisonment or more.\n\f No. 18-5099 United States v. Myers Page 3\n\n\n“serious drug” offense under the ACCA. The district court disagreed, concluding that the\nconvictions qualify as ACCA predicates because initiating a process to manufacture\nmethamphetamine involves manufacturing the drug. After finding that Myers is an armed career\ncriminal, the district court sentenced him to the statutory mandatory minimum term of 180\nmonths imprisonment and 3 years’ supervised release, and also imposed a special assessment of\n$100. This timely appeal followed.\n II. Discussion\n\n A. Standard of Review and Applicable Law\n\n The court reviews de novo whether a prior conviction is a “serious drug offense” under\nthe ACCA. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013).\n\n To determine whether a particular offense qualifies as a serious drug offense, the court\napplies a “categorical approach,” which looks “only to the statutory definitions—i.e., the\nelements—of a defendant’s prior offenses, and not to the particular facts underlying those\nconvictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks\nand citation omitted). Further, the inquiry turns on the elements of the offense at issue, and not\nthe label state law places on it. Taylor v. United States, 495 U.S. 575, 588-89 (1990) (“Congress\nintended that the enhancement provision [of the ACCA] be triggered by crimes having certain\nspecified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws\nof the State of conviction.”).\n\n At issue is whether the district court properly applied the ACCA sentence enhancement,\n18 U.S.C. § 924(e), which provides:\n\n (1) In the case of a person who violates section 922(g) of this title and has three\n previous convictions by any court referred to in section 922(g)(1) of this title for a\n violent felony or a serious drug offense, or both, committed on occasions different\n from one another, such person shall be fined under this title and imprisoned not\n less than fifteen years, and, notwithstanding any other provision of law, the court\n shall not suspend the sentence of, or grant a probationary sentence to, such person\n with respect to the conviction under section 922(g).\n\f No. 18-5099 United States v. Myers Page 4\n\n\nAnd § 924(e)(2)(A) defines “serious drug offense” to mean:\n\n (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the\n Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter\n 705 of title 46, for which a maximum term of imprisonment of ten years or more\n is prescribed by law; or\n (ii) an offense under State law, involving manufacturing, distributing, or\n possessing with intent to manufacture or distribute, a controlled substance (as\n defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for\n which a maximum term of imprisonment of ten years or more is prescribed by\n law.\n\n The state offense at issue, the initiation of methamphetamine manufacture, is defined by\nTennessee Code Annotated § 39-17-435:\n\n (a) It is an offense for a person to knowingly initiate a process intended to result\n in the manufacture of any amount of methamphetamine.\n (b) It shall not be a defense to a violation of this section that the chemical reaction\n is not complete, that no methamphetamine was actually created, or that the\n process would not actually create methamphetamine if completed.\n (c) For purposes of this section, “initiates” means to begin the extraction of an\n immediate methamphetamine precursor from a commercial product, to begin the\n active modification of a commercial product for use in methamphetamine\n creation, or to heat or combine any substance or substances that can be used in\n methamphetamine creation.\n\nThese are the only means by which a defendant can be convicted of initiation of\nmethamphetamine manufacture process under Tennessee law.\n\n B. Analysis\n\n A state conviction qualifies as “a serious drug offense” if it is an offense “involving\nmanufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled\nsubstance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for\nwhich a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.\n§ 924(e)(2)(A)(ii). There is no dispute that initiation of the methamphetamine manufacture\nprocess carries a maximum term of ten years or more, and that methamphetamine is a listed\ncontrolled substance. Tenn. Code Ann. § 39-17-435(f); § 40-35-111(b)(2) (prescribing a\nmaximum “authorized term[] of imprisonment” of up to “thirty (30) years” for Class B felonies).\n\f No. 18-5099 United States v. Myers Page 5\n\n\nThe sole issue on appeal is whether the initiation offense involves manufacturing\nmethamphetamine.\n\n 1. United States v. Eason\n\n This court recently held in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), that the\nrelated Tennessee offense of promoting methamphetamine manufacture, Tenn. Code Ann. § 39-\n17-433, is a serious drug offense under the ACCA. After conducting the divisibility analysis\nrequired by Descamps and Mathis v. United States, 136 S.Ct. 2243 (2016), the Eason court\nconcluded that the least of the acts criminalized by the statute is the purchase of an ingredient\nthat could be used to produce methamphetamine with reckless disregard of its intended use. 919\nF.3d at 389. The court then analyzed whether such conduct “involves” the manufacture of\nmethamphetamine so as to qualify as a serious drug offense under the ACCA.\n\n The panel noted that most other circuits have interpreted involving “as an ‘expansive\nterm,’ which goes beyond the enumerated offenses and ‘requires only that the conviction be\nrelated to or connected with drug manufacture, distribution, or possession, as opposed to\nincluding those acts as an element of the offense.’” Id. at 390-91 (quoting United States v.\nBynum, 669 F.3d 880, 886 (8th Cir. 2012) (internal quotation omitted)); (citing United States v.\nGibbs, 656 F.3d 180, 185 (3d Cir. 2011) (“In adopting this position, we conform with all courts\nof appeals that have addressed the scope of the definition of a serious drug offense.”); United\nStates v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (“[I]nvolving means related to or connected\nwith.” (citation and internal quotation marks omitted)); United States v. Alexander, 331 F.3d 116,\n131 (D.C. Cir. 2003) (citing “related to or connected with” language); United States v. King, 325\nF.3d 110, 113-114 (2d Cir. 2003) (“[I]nvolving has expansive connotations ... encompassing ...\noffenses that are related to or connected with [distributing, manufacturing, or possessing.]”)).\nBut, the Eason court also observed that the term “involving” has its limits, and that while the\nterm “is not to be too narrowly read, it also is not to be too broadly read.” Id. (quoting United\nStates v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006) (explaining that “[n]ot all offenses bearing\nany sort of relationship with drug manufacturing, distribution, or possession with intent to\nmanufacture or distribute will qualify as predicate offenses under ACCA. The relationship must\nnot be too remote or tangential.”)).\n\f No. 18-5099 United States v. Myers Page 6\n\n\n In addressing the “involving” test, the court explained:\n\n Here, the conduct prohibited [] relates to and is connected with the manufacture of\n methamphetamine. Methamphetamine can be made largely from products\n purchased over the counter. . . . Thus, the purchase of those ingredients is often an\n essential first step in the drug’s manufacture. And to ensure that the statute\n criminalizes only those purchases that relate to manufacture—for our purposes,\n that they are not too tangential from manufacture—the Tennessee legislature\n requires more: a person must purchase the ingredient with knowledge that it will\n be used to produce methamphetamine, or with a “reckless disregard of [the\n ingredient’s] intended use.”\n\nId. at 391-92.\n\n The Eason panel determined that both the minimal mens rea required (reckless disregard\nof the ingredient’s intended use) and the action required (purchasing the prerequisite ingredient)\nare sufficiently connected to the “methamphetamine’s ‘production, preparation, propagation,\ncompounding or processing’” to make the promotion offense an offense that “involves” the\nmanufacture of methamphetamine under the ACCA. Id. at 392 (quoting 21 U.S.C. § 802(15)\n(defining manufacturing)).\n\n 2. Whether the Initiation of Methamphetamine Manufacture Process Is a\n Serious Drug Offense Under the ACCA\n\n Although Myers’s prior convictions were of the initiation statute, rather than the\npromoting statute, Eason dictates the outcome here. Myers argues that a person could be\nconvicted under the Tennessee initiation statute without possessing, distributing, or “actually\nstarting the process of manufacturing” any controlled substance under 18 U.S.C.\n§ 924(e)(2)(A)(ii), (Appellant Br. at 13) and that a person can use thousands of legal,\ncommonplace ingredients to make methamphetamine, including automotive and household\nchemicals, like lighter fluid and lithium strips, many of which are not defined as controlled\nsubstances under federal law. (Id. at 16-19) (citing State v. Dunn, 2016 WL 1446113 (Tenn.\nCrim. App., April 12, 2016) for the proposition that a defendant has been convicted of initiation\nfor possessing an opened cold compression pack, among other household materials).) Although\nMyers acknowledges that courts have interpreted the phrase “involving” broadly, he maintains\nthat the term as written “modifies the word ‘controlled substance,’” and since he never possessed\n\f No. 18-5099 United States v. Myers Page 7\n\n\nor manufactured a controlled substance, his offense is not subject to the ACCA enhancement.\n(Appellant Br. at 14-15 (emphasis in original).) But these objections apply to the promotion\noffense as well, and were rejected by Eason, which held that simply purchasing an ingredient\nthat could be used to produce methamphetamine with reckless disregard for its intended use\nconstitutes an offense involving the manufacture of methamphetamine under the ACCA.\n\n The initiation statute here requires that a person “knowingly initiate a process intended to\n. . . manufacture . . . methamphetamine,” which is accomplished by “begin[ning] the extraction\nof an immediate methamphetamine precursor from a commercial product,” “begin[ning] the\nactive modification of a commercial product for use in methamphetamine creation,” or\n“heat[ing] or combin[ing] any substance or substances that can be used in methamphetamine\ncreation.” Tenn. Code Ann. § 39-17-435. If purchasing a methamphetamine ingredient with\nreckless disregard for its intended use involves the manufacture of methamphetamine, then\nknowingly initiating a process intended to manufacture methamphetamine surely involves its\nmanufacture as well.\n\n Myers is correct that a defendant could be convicted under the initiation statute although\n“no chemical reaction would likely result, no controlled substances would be involved, and\ncertainly no methamphetamine would be produced.” (Appellant Br. at 17). However, as Eason\nmade clear, the Tennessee legislature’s intent to criminalize steps in the methamphetamine\nmanufacturing process, including actions short of the actual manufacture of the drug, does not\nremove the offenses from the ambit of the ACCA, provided they still involve the manufacture of\nthe drug. Further, Tennessee cases have held that the initiation offense must be committed\nknowingly. In State v. Banks, No. M2008–01823–CCA–R3–CD, 2010 WL 2943115, at *7\n(Tenn. Crim. App. July 26, 2010), the court explained:\n\n Because the specific steps which comprise the initiation offense must be\n undertaken ‘knowingly,’ a person who inadvertently heats or mixes substances\n which are commonly used in the manufacture of methamphetamine, or purchases\n an over-the-counter drug containing a prohibited substance would not be guilty of\n a crime under the terms of the statute unless the state proved that the conduct was\n undertaken with the intent to initiate a process that would lead to the production\n of methamphetamine.\n\f No. 18-5099 United States v. Myers Page 8\n\n\n By pleading guilty to two initiation offenses, Myers acknowledged that he knowingly\ninitiated a process intended to result in the manufacture of methamphetamine. Because Myers\nhad a violent felony conviction and two serious drug offense convictions, the district court did\nnot err in sentencing him as an armed career criminal under the ACCA.\n\n III. Conclusion\n\n For the reasons above, we AFFIRM the district court’s application of the ACCA’s\nsentencing enhancement.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Donald Cory MYERS, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-03\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0112p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\nUNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-5099\\n v. │\\n │\\n │\\nDONALD CORY MYERS, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee at Winchester.\\n No. 4:17-cr-00005-1—Travis R. McDonough, District Judge.\\n\\n Argued: January 31, 2019\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,\\nINC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES\\nATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Gianna Maio,\\nFEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,\\nTennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,\\nKnoxville, Tennessee, for Appellee.\\n\\f No. 18-5099 United States v. Myers Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n HELENE N. WHITE, Circuit Judge.\\n\\n Defendant-Appellant Donald Myers challenges his 180-month sentence imposed under\\nthe Armed Career Criminal Act (ACCA) based on two prior Tennessee convictions for initiation\\nof a process intended to result in the manufacture of methamphetamine. Myers argues that the\\nTennessee initiation offense is not a serious drug offense under the ACCA. We AFFIRM.\\n\\n I. Background\\n\\n A. Factual Overview\\n\\n On August 24, 2016, Myers entered Kelly Sullivan’s home without permission, pulled\\nout a gun, pointed it at Sullivan, and demanded drugs. Sullivan told Myers that she had drugs in\\nher car and the two went outside. Once outside, Sullivan saw her neighbor Kristy Baker and\\nattempted to whisper to her to call the police. Myers then grabbed Sullivan and told Baker, “if\\nyou value this woman’s life, you will get me drugs.” (R. 28, PID 91.) Baker ran from the scene\\nand called the police, who soon arrived and arrested Myers.\\n Myers pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C.\\n§ 922(g)(1). The Pre-Sentence Investigation Report (PSR) recommended that Myers qualify as\\nan armed career criminal under the ACCA, 18 U.S.C. § 924(e), based on his prior Tennessee\\nconvictions for aggravated assault and two separate initiations of a process intended to result in\\nthe manufacture of methamphetamine.1 The PSR recommended the mandatory minimum\\nsentence of fifteen years’ imprisonment under the ACCA.\\n At sentencing, Myers objected to his classification as an armed career criminal, arguing\\nthat initiating a process intended to result in the manufacture of methamphetamine is not a\\n\\n 1On July 28, 2006, the Coffee County Circuit Court sentenced Myers to six years’ imprisonment for the\\naggravated assault. On May 11, 2011, the Coffee County Circuit Court sentenced Myers to eight years and six\\nmonths’ imprisonment for both initiation charges. Myers committed the first of these on November 25, 2010; Myers\\ncommitted the second offense on January 26, 2011. Both offenses carried a potential maximum sentence of ten\\nyears’ imprisonment or more.\\n\\f No. 18-5099 United States v. Myers Page 3\\n\\n\\n“serious drug” offense under the ACCA. The district court disagreed, concluding that the\\nconvictions qualify as ACCA predicates because initiating a process to manufacture\\nmethamphetamine involves manufacturing the drug. After finding that Myers is an armed career\\ncriminal, the district court sentenced him to the statutory mandatory minimum term of 180\\nmonths imprisonment and 3 years’ supervised release, and also imposed a special assessment of\\n$100. This timely appeal followed.\\n II. Discussion\\n\\n A. Standard of Review and Applicable Law\\n\\n The court reviews de novo whether a prior conviction is a “serious drug offense” under\\nthe ACCA. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013).\\n\\n To determine whether a particular offense qualifies as a serious drug offense, the court\\napplies a “categorical approach,” which looks “only to the statutory definitions—i.e., the\\nelements—of a defendant’s prior offenses, and not to the particular facts underlying those\\nconvictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks\\nand citation omitted). Further, the inquiry turns on the elements of the offense at issue, and not\\nthe label state law places on it. Taylor v. United States, 495 U.S. 575, 588-89 (1990) (“Congress\\nintended that the enhancement provision [of the ACCA] be triggered by crimes having certain\\nspecified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws\\nof the State of conviction.”).\\n\\n At issue is whether the district court properly applied the ACCA sentence enhancement,\\n18 U.S.C. § 924(e), which provides:\\n\\n (1) In the case of a person who violates section 922(g) of this title and has three\\n previous convictions by any court referred to in section 922(g)(1) of this title for a\\n violent felony or a serious drug offense, or both, committed on occasions different\\n from one another, such person shall be fined under this title and imprisoned not\\n less than fifteen years, and, notwithstanding any other provision of law, the court\\n shall not suspend the sentence of, or grant a probationary sentence to, such person\\n with respect to the conviction under section 922(g).\\n\\f No. 18-5099 United States v. Myers Page 4\\n\\n\\nAnd § 924(e)(2)(A) defines “serious drug offense” to mean:\\n\\n (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the\\n Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter\\n 705 of title 46, for which a maximum term of imprisonment of ten years or more\\n is prescribed by law; or\\n (ii) an offense under State law, involving manufacturing, distributing, or\\n possessing with intent to manufacture or distribute, a controlled substance (as\\n defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for\\n which a maximum term of imprisonment of ten years or more is prescribed by\\n law.\\n\\n The state offense at issue, the initiation of methamphetamine manufacture, is defined by\\nTennessee Code Annotated § 39-17-435:\\n\\n (a) It is an offense for a person to knowingly initiate a process intended to result\\n in the manufacture of any amount of methamphetamine.\\n (b) It shall not be a defense to a violation of this section that the chemical reaction\\n is not complete, that no methamphetamine was actually created, or that the\\n process would not actually create methamphetamine if completed.\\n (c) For purposes of this section, “initiates” means to begin the extraction of an\\n immediate methamphetamine precursor from a commercial product, to begin the\\n active modification of a commercial product for use in methamphetamine\\n creation, or to heat or combine any substance or substances that can be used in\\n methamphetamine creation.\\n\\nThese are the only means by which a defendant can be convicted of initiation of\\nmethamphetamine manufacture process under Tennessee law.\\n\\n B. Analysis\\n\\n A state conviction qualifies as “a serious drug offense” if it is an offense “involving\\nmanufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled\\nsubstance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for\\nwhich a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.\\n§ 924(e)(2)(A)(ii). There is no dispute that initiation of the methamphetamine manufacture\\nprocess carries a maximum term of ten years or more, and that methamphetamine is a listed\\ncontrolled substance. Tenn. Code Ann. § 39-17-435(f); § 40-35-111(b)(2) (prescribing a\\nmaximum “authorized term[] of imprisonment” of up to “thirty (30) years” for Class B felonies).\\n\\f No. 18-5099 United States v. Myers Page 5\\n\\n\\nThe sole issue on appeal is whether the initiation offense involves manufacturing\\nmethamphetamine.\\n\\n 1. United States v. Eason\\n\\n This court recently held in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), that the\\nrelated Tennessee offense of promoting methamphetamine manufacture, Tenn. Code Ann. § 39-\\n17-433, is a serious drug offense under the ACCA. After conducting the divisibility analysis\\nrequired by Descamps and Mathis v. United States, 136 S.Ct. 2243 (2016), the Eason court\\nconcluded that the least of the acts criminalized by the statute is the purchase of an ingredient\\nthat could be used to produce methamphetamine with reckless disregard of its intended use. 919\\nF.3d at 389. The court then analyzed whether such conduct “involves” the manufacture of\\nmethamphetamine so as to qualify as a serious drug offense under the ACCA.\\n\\n The panel noted that most other circuits have interpreted involving “as an ‘expansive\\nterm,’ which goes beyond the enumerated offenses and ‘requires only that the conviction be\\nrelated to or connected with drug manufacture, distribution, or possession, as opposed to\\nincluding those acts as an element of the offense.’” Id. at 390-91 (quoting United States v.\\nBynum, 669 F.3d 880, 886 (8th Cir. 2012) (internal quotation omitted)); (citing United States v.\\nGibbs, 656 F.3d 180, 185 (3d Cir. 2011) (“In adopting this position, we conform with all courts\\nof appeals that have addressed the scope of the definition of a serious drug offense.”); United\\nStates v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (“[I]nvolving means related to or connected\\nwith.” (citation and internal quotation marks omitted)); United States v. Alexander, 331 F.3d 116,\\n131 (D.C. Cir. 2003) (citing “related to or connected with” language); United States v. King, 325\\nF.3d 110, 113-114 (2d Cir. 2003) (“[I]nvolving has expansive connotations ... encompassing ...\\noffenses that are related to or connected with [distributing, manufacturing, or possessing.]”)).\\nBut, the Eason court also observed that the term “involving” has its limits, and that while the\\nterm “is not to be too narrowly read, it also is not to be too broadly read.” Id. (quoting United\\nStates v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006) (explaining that “[n]ot all offenses bearing\\nany sort of relationship with drug manufacturing, distribution, or possession with intent to\\nmanufacture or distribute will qualify as predicate offenses under ACCA. The relationship must\\nnot be too remote or tangential.”)).\\n\\f No. 18-5099 United States v. Myers Page 6\\n\\n\\n In addressing the “involving” test, the court explained:\\n\\n Here, the conduct prohibited [] relates to and is connected with the manufacture of\\n methamphetamine. Methamphetamine can be made largely from products\\n purchased over the counter. . . . Thus, the purchase of those ingredients is often an\\n essential first step in the drug’s manufacture. And to ensure that the statute\\n criminalizes only those purchases that relate to manufacture—for our purposes,\\n that they are not too tangential from manufacture—the Tennessee legislature\\n requires more: a person must purchase the ingredient with knowledge that it will\\n be used to produce methamphetamine, or with a “reckless disregard of [the\\n ingredient’s] intended use.”\\n\\nId. at 391-92.\\n\\n The Eason panel determined that both the minimal mens rea required (reckless disregard\\nof the ingredient’s intended use) and the action required (purchasing the prerequisite ingredient)\\nare sufficiently connected to the “methamphetamine’s ‘production, preparation, propagation,\\ncompounding or processing’” to make the promotion offense an offense that “involves” the\\nmanufacture of methamphetamine under the ACCA. Id. at 392 (quoting 21 U.S.C. § 802(15)\\n(defining manufacturing)).\\n\\n 2. Whether the Initiation of Methamphetamine Manufacture Process Is a\\n Serious Drug Offense Under the ACCA\\n\\n Although Myers’s prior convictions were of the initiation statute, rather than the\\npromoting statute, Eason dictates the outcome here. Myers argues that a person could be\\nconvicted under the Tennessee initiation statute without possessing, distributing, or “actually\\nstarting the process of manufacturing” any controlled substance under 18 U.S.C.\\n§ 924(e)(2)(A)(ii), (Appellant Br. at 13) and that a person can use thousands of legal,\\ncommonplace ingredients to make methamphetamine, including automotive and household\\nchemicals, like lighter fluid and lithium strips, many of which are not defined as controlled\\nsubstances under federal law. (Id. at 16-19) (citing State v. Dunn, 2016 WL 1446113 (Tenn.\\nCrim. App., April 12, 2016) for the proposition that a defendant has been convicted of initiation\\nfor possessing an opened cold compression pack, among other household materials).) Although\\nMyers acknowledges that courts have interpreted the phrase “involving” broadly, he maintains\\nthat the term as written “modifies the word ‘controlled substance,’” and since he never possessed\\n\\f No. 18-5099 United States v. Myers Page 7\\n\\n\\nor manufactured a controlled substance, his offense is not subject to the ACCA enhancement.\\n(Appellant Br. at 14-15 (emphasis in original).) But these objections apply to the promotion\\noffense as well, and were rejected by Eason, which held that simply purchasing an ingredient\\nthat could be used to produce methamphetamine with reckless disregard for its intended use\\nconstitutes an offense involving the manufacture of methamphetamine under the ACCA.\\n\\n The initiation statute here requires that a person “knowingly initiate a process intended to\\n. . . manufacture . . . methamphetamine,” which is accomplished by “begin[ning] the extraction\\nof an immediate methamphetamine precursor from a commercial product,” “begin[ning] the\\nactive modification of a commercial product for use in methamphetamine creation,” or\\n“heat[ing] or combin[ing] any substance or substances that can be used in methamphetamine\\ncreation.” Tenn. Code Ann. § 39-17-435. If purchasing a methamphetamine ingredient with\\nreckless disregard for its intended use involves the manufacture of methamphetamine, then\\nknowingly initiating a process intended to manufacture methamphetamine surely involves its\\nmanufacture as well.\\n\\n Myers is correct that a defendant could be convicted under the initiation statute although\\n“no chemical reaction would likely result, no controlled substances would be involved, and\\ncertainly no methamphetamine would be produced.” (Appellant Br. at 17). However, as Eason\\nmade clear, the Tennessee legislature’s intent to criminalize steps in the methamphetamine\\nmanufacturing process, including actions short of the actual manufacture of the drug, does not\\nremove the offenses from the ambit of the ACCA, provided they still involve the manufacture of\\nthe drug. Further, Tennessee cases have held that the initiation offense must be committed\\nknowingly. In State v. Banks, No. M2008–01823–CCA–R3–CD, 2010 WL 2943115, at *7\\n(Tenn. Crim. App. July 26, 2010), the court explained:\\n\\n Because the specific steps which comprise the initiation offense must be\\n undertaken ‘knowingly,’ a person who inadvertently heats or mixes substances\\n which are commonly used in the manufacture of methamphetamine, or purchases\\n an over-the-counter drug containing a prohibited substance would not be guilty of\\n a crime under the terms of the statute unless the state proved that the conduct was\\n undertaken with the intent to initiate a process that would lead to the production\\n of methamphetamine.\\n\\f No. 18-5099 United States v. Myers Page 8\\n\\n\\n By pleading guilty to two initiation offenses, Myers acknowledged that he knowingly\\ninitiated a process intended to result in the manufacture of methamphetamine. Because Myers\\nhad a violent felony conviction and two serious drug offense convictions, the district court did\\nnot err in sentencing him as an armed career criminal under the ACCA.\\n\\n III. Conclusion\\n\\n For the reasons above, we AFFIRM the district court’s application of the ACCA’s\\nsentencing enhancement.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2480,"cells":{"id":{"kind":"number","value":4625641,"string":"4,625,641"},"name":{"kind":"string","value":"Jane DOES 1-2, Plaintiffs-Appellees, Eva Cabrera and Brittney Halverson (17-1801); B.D. (17-1802); C.T. (17-1827), Objectors-Appellants. v. DÉJÀ VU SERVICES, INC., Fka Déjà Vu Consulting, Inc., Et Al., Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Jane Doe v. Deja Vu Consulting, Inc."},"decision_date":{"kind":"string","value":"2019-06-03"},"docket_number":{"kind":"string","value":"17-1827"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"COLE, Chief Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0113p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n JANE DOES 1–2, ┐\\n Plaintiffs-Appellees, │\\n │\\n │\\n EVA CABRERA and BRITTNEY HALVERSON (17-1801); │\\n B.D. (17-1802); C.T. (17-1827), > Nos. 17-1801/1802/1827\\n Objectors-Appellants. │\\n │\\n │\\n v. │\\n │\\n DÉJÀ VU CONSULTING, INC., dba Déjà Vu of Saginaw, │\\n Inc., nka Déjà Vu Services, Inc., et al., │\\n │\\n │\\n Defendants-Appellees. │\\n ┘\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:16-cv-10877—Stephen J. Murphy, III, District Judge.\\n\\n Argued: October 17, 2018\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Harold L. Lichten, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for\\nall Appellants. Jason J. Thompson, SOMERS SCHWARTZ, P.C., Southfield, Michigan, for\\nJane Doe Appellees. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan,\\nfor Déjà Vu Appellees. ON BRIEF: Harold L. Lichten, Shannon Liss-Riordan, Matthew\\nThomson, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for Appellants in 17-\\n1801. Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,\\nMichigan, for Déjà Vu Appellees. Charles P. Yezbak, III, Daniel Eduardo Arciniegas, YEZBAK\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 2\\n\\n\\nLAW OFFICES, Nashville, Tennessee, for Appellant in 17-1802. W. Allen McDonald, LACY,\\nPRICE & WAGNER, P.C., Knoxville, Tennessee, for Appellant in 17-1827. Beth M. Rivers,\\nPITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Jane Doe Appellees.\\n\\n COLE, C.J., delivered the opinion of the court in which NALBANDIAN, J., joined, and\\nWHITE, J., joined in part. WHITE, J. (pp. 17–22), delivered a separate opinion dissenting in\\npart.\\n _________________\\n\\n OPINION\\n _________________\\n\\n COLE, Chief Judge. After a class of 28,177 exotic dancers alleged that Déjà Vu dance\\nclubs violated the Fair Labor Standards Act and state wage-and-hour laws, Déjà Vu and the class\\nof dancers entered into a settlement agreement. The district court approved the settlement over\\nthe objections of four class members who now appeal, arguing that the settlement was\\nfundamentally unfair and failed to comport with procedural requirements for class action\\nsettlements. Because the district court did not abuse its discretion in approving the settlement,\\nwe affirm.\\n\\n I.\\n\\n This class of dancers was not the first to sue Déjà Vu for alleged Fair Labor Standards\\nAct (“FLSA”) and state law violations. In 2008, a class of dancers filed a class action lawsuit in\\nthe Eastern District of Michigan, alleging that two dance clubs—Cin-Lan, Inc., and Déjà Vu\\nConsulting, Inc.—misclassified them as non-employees or independent contractors in violation\\nof the FLSA and the Michigan Minimum Wage Act. Over the next three years, the parties\\nengaged in extensive discovery and motion practice. After more than six months of negotiations,\\nthey entered into a settlement agreement that provided the dancers monetary compensation and\\ninjunctive relief. The district court approved the settlement (“Cin-Lan Settlement”) and retained\\njurisdiction to ensure its enforcement. Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2011 WL\\n13266312 (E.D. Mich. July 15, 2011).\\n\\n On March 10, 2016—five years after the approval of the Cin-Lan Settlement—another\\ndancer (“Jane Doe 1”) filed a complaint against Déjà Vu Consulting, its affiliate dance clubs, and\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 3\\n\\n\\nits owner Harry Mohney (collectively, “Déjà Vu”) in the Eastern District of Michigan. Jane Doe\\n1 filed the complaint as both a class action under Federal Rule of Civil Procedure 23 and a\\ncollective action under 29 U.S.C. § 216(b) of the FLSA, seeking to bring the action on behalf of\\nherself and “[a]ll exotic dancers who worked for Defendants and were misclassified by\\nDefendants as independent contractors at any time in the past three years” (collectively, “the\\nDancers”). (Compl., R. 1, PageID 24–25 (italics in original).) This lawsuit involves the same\\nclass counsel, many of the same dancers, one of the same defendants, and similar claims as the\\ninitial Cin-Lan dispute. Specifically, the Dancers allege that Déjà Vu’s clubs violated the FLSA\\nand state wage-and-hour laws by “intentionally misclassif[ying] class members as independent\\ncontractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split\\ngratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.”\\n(Op. & Order, R. 77, PageID 4200.)1\\n\\n Déjà Vu filed a motion to dismiss or stay proceedings in favor of arbitration on\\nSeptember 16, 2016, and it attached a copy of Jane Doe 1’s Dancer Performance Lease\\nagreement, which included a clause mandating binding individual arbitration for all claims\\narising out of her performances.\\n\\n Before the district court made any rulings on the merits, the parties began negotiating a\\nsettlement agreement. On December 28, 2016, the Dancers’ attorneys notified the court that they\\nhad “executed a tentative term sheet on a settlement.” (Mot. to Transfer Case, R. 22, PageID\\n445.) Additionally, the Dancers filed a motion requesting an intra-district transfer of the case to\\nthe same judge who retained jurisdiction over the Cin-Lan settlement, both because the case\\ninvokes his continuing jurisdiction and because he was “intimately familiar with the facts and\\ncircumstances of the parties’ dispute after presiding over the prior case for approximately four\\nyears.” (Id. at PageID 446.) On January 4, 2017, the district court granted the motion to\\ntransfer.\\n\\n\\n\\n\\n 1Although the Cin-Lan case involved similar allegations, the Cin-Lan settlement did not mandate that the\\nclubs convert the dancers from independent contractors to employees.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 4\\n\\n\\n After negotiation, the parties reached a settlement agreement (“Settlement Agreement”).\\nIn exchange for releasing their claims against Déjà Vu, the Settlement Agreement provides the\\nDancers with injunctive and monetary relief.\\n\\n The injunctive relief is structured around the Settlement Agreement’s requirement that\\nevery club provide its current dancers with an Entertainer Assessment Form. This assessment\\ndetermines whether the dancer should be classified as an employee or an Independent\\nProfessional Entertainer (“IPE”), the latter of which is akin to an independent contractor. The\\nSettlement Agreement requires dancers to complete the assessment before they can perform at\\nany of Déjà Vu’s clubs. The assessment must then be verified by the club’s Certified Public\\nAccountant.\\n\\n The remaining injunctive relief turns on whether the assessment determines the dancer in\\nquestion is an employee or an IPE. Under the Settlement Agreement, employees may be\\nrequired to tip-out or tip-pool with the club’s other employees, but they must be paid minimum\\nwage (or, where available, at the tip-credited wage). Employees will also be entitled to\\ncommissions of at least 20% of their dance fees that exceed the cost of employment, as well as\\n20% commissions of their sale of ‘conversation beverages,’ which are drinks that dancers\\npersuade customers to buy for them. Employees will be reimbursed by the club for all license\\nand permit fees required to perform at the club, and the club will provide them with two logo\\ncostumes per month to wear while working. In contrast, the Settlement Agreement prevents\\nDéjà Vu from imposing any work schedule upon IPEs or requiring IPEs to tip-out or tip-pool\\nwith any employee. IPEs also cannot be required to wear any costume. Finally, IPEs will have\\nthe right to vote in each club’s annual IPE meeting to change or modify any club policy that\\naffects IPEs, which ensures that they have sufficient control over the clubs’ operations to prevent\\nDéjà Vu from exerting employer-employee control over IPEs.\\n\\n With respect to monetary relief, the Settlement Agreement divides a total award of $6.55\\nmillion into three primary categories: $1 million toward the Net Cash Payment Settlement Fund\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 5\\n\\n\\n(“the cash pool”), $4.5 million toward Secondary Pool Remuneration (“the secondary pool”),\\nand $900,000 in attorneys’ fees.2\\n\\n The first two categories serve as alternative forms of monetary relief for the class\\nmembers. The first option is to receive a one-time payment from the cash pool. The $1 million\\ncash pool includes $30,000 in Enhancement Payments for the named plaintiffs and $50,000 to\\npay defendants’ Administration Costs. After subtracting these costs, the total cash pool to be\\nsplit between all of the Dancers who elect to receive a one-time direct payment is $920,000.\\nCash pool funds will be allocated on a point-based system that favors dancers who worked for\\nthe clubs for a longer period of time, as well as dancers who worked more recently at Déjà Vu’s\\nclubs.\\n\\n The second option is to collect settlement funds from the secondary pool in the form of\\ncredits that can be used at Déjà Vu clubs. This is the default form of relief for Dancers who do\\nnot opt into the cash pool: each time a class member performs at one of Déjà Vu’s clubs, credits\\nfrom the secondary pool will either cover 60% of her daily rent at the club or allow her to collect\\nup to $100 in dance fees. Depending on how many months the dancer has performed at the Déjà\\nVu club where she collects the credits, the total amount of money she can recuperate from the\\nsecondary pool is capped at $200, $1,000, or $2,000.\\n\\n Finally, the Settlement Agreement provides compensation for the Dancers’ attorneys.\\nUnder the Settlement Agreement, Déjà Vu agrees not to oppose an award of up to $900,000 in\\ndirect attorneys’ fees. Déjà Vu also agrees not to oppose an award of up to $300,000 in indirect\\nattorneys’ fees to be paid out of the Dancers’ secondary pool. The Settlement Agreement\\nestablishes that the indirect fees are to be calculated based on 33.3% of the value of the redeemed\\nportion of the secondary pool. These indirect fees are designed to encourage the Dancers’\\ncounsel to try and shore up as much participation as possible in the secondary pool by creating a\\n“direct financial incentive” for their work. (Déjà Vu Br. 64 (italics in original).)\\n\\n\\n\\n\\n 2The Settlement Agreement also allocates $100,000 to resolve all Private Attorneys General Act claims\\nagainst its clubs in California.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 6\\n\\n\\n On June 19, 2017, the district court approved the Settlement Agreement. In finding that\\nthe parties satisfied their burden to show that the Settlement Agreement was fair, the district\\ncourt turned to International Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631\\n(6th Cir. 2007) (“UAW”), which established a set of factors to determine the fairness of class\\naction settlements. In particular, the court stressed the first factor—the comparison between the\\nrelief offered in the Settlement Agreement and the Dancers’ likelihood of success on the merits\\nagainst Déjà Vu. The court emphasized the “high risk of continued litigation and the uncertain\\nlikelihood of success on the merits” for the Dancers, finding that without the Settlement\\nAgreement, “the vast majority of class members would recover nothing.” (Op. & Order, R. 77,\\nPageID 4212, 4221.) The court also found that the Settlement Agreement “offers value to the\\nclass in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to\\nDefendants’ business practices, all of which directly benefit class members.” (Id. at PageID\\n4212.) After analyzing the remaining UAW factors, the court concluded that the Settlement\\nAgreement “is the result of a bona-fide dispute, and the terms established in the settlement are a\\nfair, reasonable, and adequate resolution of the claims.” (Id. at PageID 4216.)\\n\\n Four members of the class—Eva Cabrera, Brittney Halverson, B.D., and C.T.\\n(collectively, “the Objectors”)—objected to the settlement. The district court overruled their\\nobjections, and they now appeal the approval of the Settlement Agreement. The Objectors’\\narguments fall into two broad categories. First, the Objectors argue that the district court abused\\nits discretion by failing to properly apply the factors that ensure the fairness of settlement\\nagreements, especially with respect to the district court’s attempt to calculate the value of the\\nDancers’ claims. Second, the Objectors argue that the settlement violates the procedural\\nrequirements of Federal Rule of Civil Procedure 23, given the breadth of the class release and the\\nnotice afforded to the unnamed class members.\\n\\n II.\\n\\n We review a district court’s approval of a class action settlement for abuse of discretion.\\nIn re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 7\\n\\n\\n A. UAW Fairness Factors\\n\\n In UAW, we established a seven-factor test to assess whether or not a class action\\nsettlement is “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e).\\n497 F.3d at 631. Those factors include: (1) the “risk of fraud or collusion,” (2) the “complexity,\\nexpense and likely duration of the litigation,” (3) the “amount of discovery engaged in by the\\nparties,” (4) the “likelihood of success on the merits,” (5) the “opinions of class counsel and class\\nrepresentatives,” (6) the “reaction of absent class members,” and (7) the “public interest.” Id.\\n\\n Of the UAW factors, “[t]he most important of the factors to be considered in reviewing a\\nsettlement is the probability of success on the merits.” Poplar Creek Dev. Co. v. Chesapeake\\nAppalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011). Thus, we address the most important\\nfactor first before proceeding to the remaining factors.\\n\\n 1. Likelihood of Success on the Merits\\n\\n A court “cannot judge the fairness of a proposed compromise without weighing the\\nplaintiff’s likelihood of success on the merits against the amount and form of the relief offered in\\nthe settlement.” UAW, 497 F.3d at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88\\n(1981)). For this reason, all class action settlements involve a balancing of competing interests.\\nWhen extinguishing the claims of a large class of people—some of whom may not even be\\naware that a pending lawsuit affects their rights—courts are required to closely analyze whether\\nthe claims that the unnamed class members are giving up are worth the benefits they may\\nreceive. Balancing those interests is difficult in cases involving industries rife with turnover, fear\\nof retaliation, and unequal bargaining interests between the class and the defendants. The district\\ncourt appropriately gave a great deal of consideration to this factor.\\n\\n After evaluating a damages model based on records from Jane Doe 1 and one other class\\nmember, as well as the high risks inherent in litigation and the potential impact of the mandatory\\narbitration clause on the Dancers’ claims, the district court found that the direct benefits provided\\nby the Settlement Agreement outweighed the value of the Dancers’ claims. We affirm, as the\\ndistrict court did not abuse its discretion in valuing the Dancers’ claims or the Settlement\\nAgreement.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 8\\n\\n\\n i. Value of the Dancers’ Claims\\n\\n The Objectors’ primary claim is that the district court abused its discretion by improperly\\ncalculating the value of the FLSA and state wage-and-hour claims that the Dancers were\\nrelinquishing in the Settlement Agreement. As a result of limited discovery and the absence of a\\nclass-wide damages model, the Objectors contend that the Settlement Agreement\\nundercompensates the class. By estimating the number of dancers working at a club per shift,\\nthe length of their shifts, and multiplying it by the federal minimum wage, the Objectors estimate\\nthat if the class action proceeded to trial, with 64 clubs, the plaintiffs could receive up to\\n$141 million dollars.3 Alternatively, the Objectors point to other dancer disputes as a basis for\\ncomparison, identifying over a dozen jury trials and settlements that provide dancers with higher\\nawards than the Settlement Agreement. Thus, the Objectors argue that the Settlement\\nAgreement’s cash pool pales in comparison to the damages that the Dancers could receive if they\\nwent to trial, and the Settlement Agreement is inadequate to justify releasing the Dancers’ claims\\nagainst Déjà Vu.\\n\\n In evaluating settlements, courts are not required “to reach any ultimate conclusions on\\nthe contested issues of fact and law which underlie the merits of the dispute, for it is the very\\nuncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that\\ninduce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San\\nFrancisco, 688 F.2d 615, 625 (9th Cir. 1982). That sentiment is reinforced here, where Déjà Vu\\nand the Dancers argue that complete, accurate class-wide models can be “impossible to construct\\nin exotic dancer cases,” because “clubs do not maintain adequate records or payroll data needed\\nto prepare common FLSA damage modeling.” (Jane Doe 1 Br. 32–33.)\\n\\n But that is not to say that the court can avoid carefully scrutinizing litigation risks in\\ncomplex class actions. We have found that it can be an abuse of discretion for a district court to\\n“merely recite the respective arguments of the objectors and parties, and then offer up platitudes\\nabout the risks of litigation generally.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,\\n825 F.3d 299, 309 (6th Cir. 2016). “Instead, the district court must specifically examine what\\n\\n 3This estimate is undercut by the fact that the Objectors argued at the fairness hearing below that the\\nDancers could receive only $70 million at trial.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 9\\n\\n\\nthe unnamed class members would give up in the proposed settlement, and then explain why—\\ngiven their likelihood of success on the merits—the tradeoff embodied in the settlement is fair to\\nunnamed members of the class.” Id.\\n\\n Here, the district court did not abuse its discretion in determining that the benefits of the\\nSettlement Agreement outweigh the value of the Dancers’ claims. The district court specifically\\nexamined what the class members were giving up based upon the available records used to\\ncalculate the damages model. The damages model showed the awards that a dancer could\\nreceive based on full or reduced minimum wage, as well as with or without offsetting the fees\\nthat dancers received during their time at Déjà Vu. By accounting for each of these factors and\\npresenting the district court with an array of awards potentially available to the Dancers, the\\nmodel offered some insight into the variation in recovery under different states’ laws. Thus,\\nalthough the court acknowledged that the damages model was imperfect based on the lack of\\nrecords for many class members, it still found that the model was “useful to determine class\\nmembers’ range of possible recovery.” (Op. & Order, R. 77, PageID 4206.) Additionally, in\\nlight of the precedent directing courts to look to the risks faced by the parties at hand rather than\\nthe general risks of litigation, the district court did not abuse its discretion in finding that the\\nmodel was more helpful than the Objectors’ comparisons to sums awarded in other class\\nactions—as the court found, “[t]he key question is not Plaintiffs’ likelihood of success against\\nthe defendants in the cases cited by the objectors[,] but their likelihood of success against\\nDefendants here.” (Id. at PageID 4210.)\\n\\n Moreover, the court did not rely solely on the damages model in assessing the value of\\nthe Dancers’ claims. Before approving the settlement, the district court also considered possible\\ncounterclaims against the Dancers, the potential of an unfavorable verdict finding that the\\nDancers should be classified as independent contractors, and the risk that the Dancers would\\nhave to face mandatory and binding arbitration in compliance with the arbitration clauses in their\\nperformance leases. (Id.)\\n\\n The high risk of arbitration in this case was recently confirmed by the Supreme Court’s\\nopinion in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which transformed the lay of the land\\nfor FLSA actions. Before Epic Systems, FLSA plaintiffs had successfully blocked the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 10\\n\\n\\nenforcement of arbitration clauses in employment contracts under the Federal Arbitration Act’s\\n“saving clause” by arguing that individual arbitration clauses in employment contracts violated\\nfederal law protecting employees’ ability to engage in class or collective actions. Id. at 1620.\\nEpic Systems foreclosed that argument. Id. at 1623, 1626, 1632. In reliance upon Epic Systems,\\nwe have since held that the FLSA’s collective action guarantees do “not displace the Arbitration\\nAct’s requirement that we enforce the employees’ agreements as written.” Gaffers v. Kelly\\nServs., 900 F.3d 293, 296 (6th Cir. 2018); see also McGrew v. VCG Holding Corp., 735 F.\\nApp’x 210, 211 (6th Cir. 2018) (finding that “individual arbitration agreements are enforceable\\nagainst both employees and independent contractors” in case involving exotic dancers). These\\nrulings highlight the uphill battle the Dancers would face in attempting to litigate their claims.\\n\\n If the arbitration clauses in the Dancers’ performance leases are enforced, proceeding\\nwith arbitration poses significant risks to many of the Dancers. One major concern is that the\\nDancers’ performance leases contain arbitration provisions requiring the losing party to pay the\\nprevailing party’s attorneys’ fees. The Objectors also concede that a substantial number of the\\nDancers fear retaliation for bringing a claim against the clubs. In sum, the district court did not\\nabuse its discretion in finding that many of the Dancers would receive little, if any, relief in lieu\\nof the Settlement Agreement. See In re Dry Max Pampers Litig., 724 F.3d at 723\\n(“The conventional argument for class action lawsuits is that the majority of class members’\\nclaims would not otherwise be worth bringing.”).\\n\\n ii. Value of the Settlement Agreement\\n\\n The district court also did not abuse its discretion in evaluating the benefits provided by\\nthe Settlement Agreement’s injunctive and monetary relief. We reject the Objectors’ contention\\nthat the credits available through the secondary pool function as coupons that cannot be counted\\ntoward the total value of the Settlement Agreement under the Class Action Fairness Act. See\\n28 U.S.C. § 1712. The Objectors’ main support for that proposition, In re Easysaver Rewards\\nLitig., 906 F.3d 747 (9th Cir. 2018), is readily distinguishable. In contrast with coupon\\nsettlements that require an individual to buy a product or service before receiving the promised\\nbenefits, id. at 755, the secondary pool does not require class members to “hand over more of\\ntheir own money” to be eligible to redeem the benefits of the Settlement Agreement in this case;\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 11\\n\\n\\nhere, the cash pool offers an alternative form of relief to dancers who prefer to cut ties with Déjà\\nVu. Because the Dancers can choose to receive compensation from the cash pool regardless of\\nwhether they continued working at Déjà Vu, the Settlement Agreement cannot be understood to\\nrequire the Dancers to “reengag[e] in the same . . . activity that they believe led to their injury.”\\nId. at 757.\\n\\n When compared against the risks involved in litigating or arbitrating the Dancers’ claims,\\nthe value of the Settlement Agreement is significant. The injunctive relief mandates extensive\\nchanges to Déjà Vu’s business practices, and both the $1 million cash pool and the $4.5 million\\nsecondary pool are available to provide financial compensation to the Dancers in the form that\\nbest suits each individual dancer’s circumstances. We find that the district court did not abuse its\\ndiscretion in finding that the tangible benefits afforded to class members as a result of the\\nSettlement Agreement outweigh the value of the volatile claims that the Dancers released.\\n\\n 2. Remaining UAW Factors\\n\\n UAW also instructs courts to consider the risk of fraud or collusion. UAW, 497 F.3d at\\n631. The Objectors argue that the Settlement Agreement promotes collusion between the\\nDancers’ counsel and Déjà Vu’s counsel. Specifically, the Objectors take issue with the\\nSettlement Agreement’s “clear-sailing clause,” which provides that Déjà Vu “agree[s] not to\\nobject to a request” for up to $900,000 of direct attorneys’ fees and up to $300,000 of indirect\\nattorneys’ fees. (Settlement Agreement, R. 41-2, PageID 1173.) The Objectors argue that the\\n“attorneys’ fees sought by Class Counsel . . . dwarf[] the recovery of the Class.” (C.T. Br. 29.)\\nThe district court correctly rejected this argument. “Not every ‘clear sailing provision’\\ndemonstrates collusion.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 426 (6th Cir. 2012).\\nAdditionally, the fee award is not disproportionate to the recovery of the class. On one hand,\\nassuming that the Dancers fully deplete the secondary pool and class counsel receive the full\\namount of indirect fees, the attorneys’ fees would represent only 23% of the total settlement\\naward, even without including the value of injunctive relief. On the other hand, assuming that\\nnot a single dancer opts into the secondary pool, the $900,000 in attorneys’ fees would represent\\nonly 20% of the combined value of the cash pool and the district court’s approximation of the\\nvalue of the injunctive relief. It is not abnormal for negotiated attorneys’ fee awards to comprise\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 12\\n\\n\\n20% to 30% of the total award. See Waters v. Intern. Precious Metal Corp., 190 F.3d 1291,\\n1294 (11th Cir. 1999); Gooch, 672 F.3d at 426. Accordingly, the district court did not abuse its\\ndiscretion in finding that this factor weighs in favor of approval.\\n\\n Another UAW factor is the complexity, expense, and likely duration of the litigation.\\n497 F.3d at 631. The district court noted that “[t]his case presents complex legal issues because\\nit combines a Rule 23 class action with a FLSA collective action.” (Op. & Order, R. 77, PageID\\n4214.) Indeed, the Cin-Lan settlement illustrates the complexity of an FLSA class action claim\\ninvolving exotic dancers. There, plaintiffs litigated against defendants for three years and\\nengaged in extensive discovery and motion practice before entering into a final settlement\\nagreement. In contrast, the Settlement Agreement in this case conserves judicial resources by\\nconsolidating eight other lawsuits and administrative proceedings into the present Settlement\\nAgreement. The district court did not abuse its discretion in finding that this factor cuts in favor\\nof approving the Settlement Agreement.\\n\\n The next UAW factor is the amount of discovery engaged in by the parties as a factor in\\napproving settlements. 497 F.3d at 631. The Objectors argue that the district court abused its\\ndiscretion by approving the settlement without requiring the parties to engage in discovery,\\nwhich led to class counsel undervaluing the class’s claims and creating a financial windfall for\\nclass counsel. But courts have held that settlements are permissible where, “notwithstanding the\\nstatus of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the\\nfacts of their case.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir.\\n1981). The Cin-Lan case, which involved extensive discovery, provided the Dancers’ counsel\\nwith a vehicle to obtain the necessary information. This case involves the same counsel\\nlitigating similar claims on behalf of many of the same dancers against one of the same\\ndefendants. As the district court found, the parties in this case “made a sufficient showing of\\ninformal discovery based on their efforts in Cin-Lan, when [the same class counsel] served\\n13 interrogatories and 87 requests for production on each of the three [D]efendants, took\\n13 depositions of Defendants’ officers and managers, and filed numerous subpoenas on third\\nparties.” (Op. & Order, R. 77, PageID 4214.) Because of the substantial overlap between the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 13\\n\\n\\ntwo cases, the district court did not abuse its discretion in finding that the parties’ informal\\ndiscovery from Cin-Lan was sufficient.\\n\\n Two UAW factors focus on the class’s response to the proposed settlement: courts are\\nrequired to consider the opinions of class counsel and class representatives, as well as the\\nreactions of absent class members. 497 F.3d at 631. Jane Doe 1, the named representative, is\\nnot among the Objectors in this case—she has a favorable view of the settlement. And both Déjà\\nVu and the Dancers agreed that the counsel representing both parties had extensive experience,\\nwhich supports the district court’s finding that counsels’ positive outlook toward the fairness of\\nthe settlement weighed in favor of approving the Settlement Agreement. The settlement\\nagreement has also received a relatively positive response from absent class members. The class\\nconsists of 28,177 current and former dancers. Of those, 24,575 notices were delivered, which\\namounts to nearly 88% of the class. And of the dancers that received notices, by the time the\\ncourt held its fairness hearing, 19% of the class—or 4,623 dancers—opted-in to the settlement,\\nwhich exceeded the parties’ expected 15% opt-in rate. In contrast, only 66 dancers opted-out of\\nthe settlement, or 0.2%, and there were only six objectors to the settlement, or 0.02%. The\\nObjectors’ only challenge to these two factors is their contention that the district court afforded\\ntoo much deference to counsel. But the court expressly acknowledged that counsel’s opinions\\nwere “by no means dispositive.” (Op. & Order, R. 77, PageID 4215.) Thus, the district court did\\nnot abuse its discretion in finding that the level of support and participation from the class\\nsupported approval of the Settlement Agreement.\\n\\n The final UAW factor is the public interest. 497 F.3d at 631. Courts have held that “there\\nis a strong public interest in encouraging settlement of complex litigation and class action suits\\nbecause they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial\\nresources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003). At the\\nsame time, courts have also found that the enforcing the FLSA furthers an important interest in\\n“encouraging employees and others to ensure that employers comply with laws governing\\nemployment.” Levan v. Sears, Roebuck & Co., 984 F. Supp. 2d 855, 871 (E.D. Tenn. 2013).\\nThe district court concluded that this Settlement Agreement achieves both purposes: the\\nsettlement “puts an end to ‘potentially long and protracted litigation,’” and it also “mandates\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 14\\n\\n\\nlong-term structural changes to Defendants’ business practices designed to ensure workers are\\naccurately classified and employees receive appropriate wages and legal protections.” (Op.\\n& Order, R. 77, PageID 4216.) We agree. Therefore, the district court did not abuse its\\ndiscretion in finding that this factor weighed in favor of approving the Settlement Agreement as\\nwell.\\n\\n B. Rule 23 Procedural Requirements\\n\\n The Objectors also argue that the settlement violates the procedural requirements of\\nFederal Rule of Civil Procedure 23, because the class release is impermissibly broad and the\\nclass notice failed to adequately apprise the class members of their rights. We address each\\nargument in turn.\\n\\n 1. Breadth of Class Release\\n\\n The Settlement Agreement defines the “Settlement Class Members’ Released Claims” as\\n“all Claims asserted in the Action, or to be asserted in the Action by way of the amendment\\ncontemplated in this Agreement, and any and all Claims of any conceivable kind or nature\\nwhatsoever that are based on such pleadings or that are reasonably related thereto (except only\\nfor those under the FLSA).” (Settlement Agreement, R. 41-2, PageID 1160.) The Settlement\\nAgreement goes on to list ten categories of state law claims it specifically includes within this\\ndefinition, including employment, wage, and labor claims against Déjà Vu. The Objectors claim\\nthat a class release of this breadth cannot satisfy the “identical factual predicate doctrine”\\noutlined by the Second Circuit in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., which limits class\\nreleases to “claims that share the same integral facts as settled claims, provided that the released\\nclaims are adequately represented prior to settlement.” 396 F.3d 96, 106 (2d Cir. 2005). As with\\nthe remainder of the district court’s approval of the Settlement Agreement, we review the district\\ncourt’s determination on this issue for abuse of discretion. Moulton v. U.S. Steel Corp., 581 F.3d\\n344, 349 (6th Cir. 2009).\\n\\n This court has held that “the question is not whether the definition of the claim in the\\ncomplaint and the definition of the claim in the release overlap perfectly; it is whether the\\nreleased claims share a ‘factual predicate’ with the claims pled in the complaint.” Moulton,\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 15\\n\\n\\n581 F.3d at 349 (internal citations omitted). The claims released in the Settlement Agreement\\nshare that factual predicate, as the release specifically cabins the categories of relinquished\\nclaims to those “based upon” or “reasonably related” to the pleadings and claims asserted in the\\nSettlement Agreement. Therefore, the Objectors’ argument that the release covers claims\\n“completely unrelated to the lawsuit” lacks merit. (Cabrera Br. 54 (emphasis in original).)\\n\\n 2. Adequacy of Notice to Class Members\\n\\n Finally, the Objectors claim that the class notice was inadequate to apprise the class\\nmembers of their rights. Rule 23(c)(2)(b) requires the class to provide notice of the nature of the\\naction; the definition of the class certified; the class claims, issues, or defenses; information on\\nhow a class member can enter an appearance with their lawyer; information on how class\\nmembers can opt into or out of the settlement; and the binding effect of the settlement\\nagreement. Additionally, we have held that “due process requires that notice to the class be\\nreasonably calculated, under all the circumstances, to apprise interested parties of the pendency\\nof the action and afford them an opportunity to present their objections.” Vassalle v. Midland\\nFunding LLC, 708 F.3d 747, 759 (6th Cir. 2013). We review the adequacy of class notice de\\nnovo. Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).\\n\\n The notice that the Dancers provided to the class covered all of the bases set out in Rule\\n23(c)(2)(b). Still, the Objectors advance several arguments for why the notice failed to comport\\nwith the due process requirements outlined above.\\n\\n First, the Objectors contend that the notice mischaracterized the scope of the release.\\nThis argument fails. The notice stated that, by staying in the class, a dancer would “give up [the]\\nright to sue Deja Vu . . . on any state law claims later,” and that all class members “will have\\nreleased all Defendants, including all of the Deja Vu–Affiliated Nightclubs, from any further\\nclaims related to the matters raised in this lawsuit” such that class members “cannot ever sue\\nany of the Defendants about these issues based upon conduct that occurred prior to the Effective\\nDate of the settlement.” (Notice of Settlement, R. 37-1, PageID 1036, 1041–42.) The class\\nnotice accurately captured the scope of the release. See supra at 14.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 16\\n\\n\\n Second, the Objectors argue that the notice provided was unclear with respect to how the\\nsettlement would be split among the Dancers. But the Objectors cite no authority that requires a\\nnotice to state how much money each class member would receive, nor do they explain how the\\nnotice could have accurately stated the amount each dancer was eligible to receive from the cash\\npool before knowing the total number of dancers who opted to participate in the cash pool. The\\nnotice appropriately details the two forms of monetary relief, including the total cash pool\\namount and the structure and value of the secondary pool credits, which is reasonable under the\\ncircumstances.\\n\\n Third, the Objectors claim that the notice was deficient because it failed to list “the 10\\nprior-filed class and collective actions against some of these clubs in which class members could\\nhave pursued their claims as an alternative to joining this action.” (Cabrera Br. 55.) For support,\\nthe Objectors point to Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a case in\\nwhich the Objectors claim that the Seventh Circuit reversed the approval of a settlement because\\nof a failure to inform class members of a pending state case. But the Objectors oversell the\\nholding in Mirfasihi, which was rooted in the fact that many class members could have recovered\\nin the pending cases but were entitled to absolutely no recovery in the action in question. See id.\\nat 785. The Seventh Circuit expressly stated that, in other contexts, notice of pending suits is not\\na “requirement[] of an acceptable settlement.” Id. Here, where the Settlement Agreement\\nprovides some monetary relief to every class member and compels Déjà Vu to change its\\nbusiness practices through injunctive relief, failure to provide notice of other pending suits does\\nnot render the class notice unreasonable. For those reasons, the notice comports with the\\nrequirements of due process.\\n\\n III.\\n\\n We affirm the judgment of the district court.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 17\\n\\n\\n _________________\\n\\n OPINION\\n _________________\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402894/\", \"author_raw\": \"COLE, Chief Judge\"}, {\"author\": \"HELENE N. WHITE, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"HELENE N. WHITE, Circuit Judge, dissenting in part.\\n\\n I agree with the majority except with regard to the coupon and attorney fee issues.\\nBecause I conclude that the secondary-pool credits are coupons under the Class Action Fairness\\nAct (CAFA), I dissent from the majority’s approval of the attorney fee provision of the\\nsettlement agreement, and would remand to the district court for reconsideration of the fee award\\nconsistent with CAFA.\\n\\n CAFA regulates attorneys’ fee awards for class-action settlements that provide relief to\\nclass members in the form of coupons. 28 U.S.C. § 1712. Coupon settlements deserve\\nadditional judicial scrutiny because of the myriad problems they present: coupon-redemption\\nrates are often low, so coupon settlements do not provide meaningful compensation to many\\nclass members; coupon settlements may not disgorge ill-gotten gains from defendants because a\\ndefendant suffers no loss from unredeemed coupons; and coupon settlements may require class\\nmembers to continue engaging in business with the defendant in order to obtain relief. See\\nChristopher R. Leslie, The Need to Study Coupon Settlements in Class Action Litigation, 18 Geo.\\nJ. Legal Ethics 1395, 1396–97 (2005). To mitigate the risk of class counsel inflating settlement\\nvaluations—and thus attorney fees—with illusory coupon relief, CAFA provides:\\n\\n If a proposed settlement in a class action provides for a recovery of coupons to a\\n class member, the portion of any attorney’s fee award to class counsel that is\\n attributable to the award of the coupons shall be based on the value to class\\n members of the coupons that are redeemed.\\n\\n28 U.S.C. § 1712(a). By mandating that fee awards be calculated based on the value of\\nredeemed coupons, CAFA “ensures that class counsel benefit only from coupons that provide\\nactual relief to the class, lessening the incentive to seek an award of coupons that class members\\nhave little interest in using.” In re Easysaver Rewards Litig., 906 F.3d 747, 755 (9th Cir. 2018)\\n(citation omitted).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 18\\n\\n\\n CAFA does not define “coupon,” however. As a result, courts have sought to give\\nmeaning to the term, “informed by § 1712’s animating purpose of preventing settlements that\\naward excessive fees while leaving class members with ‘nothing more than promotional coupons\\nto purchase more products from the defendants.’” In re Easysaver, 906 F.3d at 755 (quoting In\\nre Online DVD-Rental Antitrust Litig., 779 F.3d 934, 950 (9th Cir. 2015)). This court has not\\naddressed § 1712 or the definition of “coupon” at length, but the Ninth Circuit has enumerated\\nthree factors that distinguish coupon settlements from non-coupon settlements: “(1) whether\\nclass members have to hand over more of their own money before they can take advantage of a\\ncredit, (2) whether the credit is valid only for select products or services, and (3) how much\\nflexibility the credit provides, including whether it expires or is freely transferrable.” Id.\\n(citation and internal quotation marks omitted). Other courts have considered similar criteria in\\nevaluating whether a settlement provides for coupon relief.1 These cases provide guidance and\\nsupport that the rent-credit and dance-fee payments in this settlement are coupons.\\n\\n First, by requiring a class member to work at a Déjà Vu club to receive any benefit from\\nthe secondary pool, the settlement forces class members to continue doing business with\\nDefendants. For clubs that charge rent to the dancers they employ, the secondary pool gives a\\nclass member a 60% discount on her nightly rent, but the class member remits the remaining\\n40% to Defendants. For all other clubs, a dance-fee credit provides, in effect, a $100 reduction\\nin the dance fees collected by the club for that day. In either case, a class member has to spend\\ntime that she could devote to other endeavors—and in essence, “hand over more of [her] own\\nmoney” to Defendants—to take advantage of the settlement. In re Easysaver, 906 F.3d at 757\\n(citation omitted). See also In re Sw. Airlines Voucher Litig., 799 F.3d 701, 706 (7th Cir. 2015)\\n(“The potential for abuse is greatest when the coupons have value only if a class member is\\n\\n 1See Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 654 (7th Cir. 2006) (describing pre-\\npaid envelopes as “a form of in-kind compensation that shares some characteristics of coupons, including forced\\nfuture business with the defendant and . . . the likelihood that the full amount of [Defendant’s] gains will not be\\ndisgorged”); Reibstein v. Rite Aid Corp., 761 F.Supp.2d 241, 255–56 (E.D. Pa. 2011) (concluding that gift cards are\\nnot coupons because they “have actual cash value,” “have no expiration date, are freely transferrable, and can be\\nused for literally thousands of products for which ordinary consumers, including class members, have need”);\\nRadosti v. Envision EMI, LLC, 717 F.Supp.2d 37, 54 n.16 (D.D.C. 2010) (“Although Congress did not define the\\nterm ‘coupon’ in the statute, courts have generally considered a coupon settlement to be one that provides benefits to\\nclass members in the form of a discount towards the future purchase of a product or service offered by the\\ndefendant.”).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 19\\n\\n\\nwilling to do business again with the defendant who has injured her in some way”). And, credits\\nmay be redeemed only by a class member at the club where she works, so the secondary pool is\\nof no value to former dancers unless they return to work.\\n\\n Second, the credits are only available for specific “products or services.” That is,\\ndepending on the business model of the Déjà Vu club in which she works, a class member may\\nredeem a secondary-pool credit only for dance fees or for a 60% credit to her rent. The\\nsecondary-pool credits are therefore similar to the types of coupon settlements criticized in the\\nSenate Judiciary Committee’s Report: a “$1 off every subsequent $5 purchase,” “a 30 percent\\ndiscount on selected products,” or $55 to use toward a purchase of a new crib from a crib\\nproducer accused of making defective cribs. S. Rep. No. 109–14, at 15–17 (2005).\\n\\n Third, the settlement agreement imposes severe restrictions on the redemption of the\\nsecondary-pool credits. The credit pool is only available for a year, and the unclaimed funds in\\nthe secondary pool revert to Defendants at the end of the year. See In re Easysaver, 906 F.3d at\\n757 (credits that “expire one year after issuance” and “cannot be used in anywhere near the same\\nway as cash” are coupons). The class member must notify the club seven days in advance that\\nshe wishes to redeem a rent credit or dance-fee payment; clubs are not required to permit more\\nthan five class members per day to redeem credits; and class members are selected on a first-\\ncome, first-served basis. A class member is limited to a maximum of $100 per day through the\\nsecondary pool. The settlement also establishes limits on possible recovery based on the length\\nof time a class member has worked: a class member who has worked for one month may receive\\na maximum of $200.00 from the pool; for between six and eighteen months, a maximum of\\n$1,000; for more than eighteen months, a maximum of $2,000. In short, the secondary-pool\\ncredits are much less flexible than the gift cards and vouchers found to fall outside CAFA’s\\nreach. See In re Online DVD, 779 F.3d at 951 (collecting cases).\\n\\n Finally, the parties have not supplied any information suggesting a likely redemption rate\\nfor the secondary-pool credits, and it seems probable that at least some of the secondary-pool\\ncredits will go unredeemed. Thus, there exists a “likelihood that the full amount of [Defendant’s]\\ngains will not be disgorged.” Synfuel Techs., 463 F.3d at 654. Accordingly, I conclude that the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 20\\n\\n\\nsecondary-pool credits are coupons for the purposes of CAFA, and the settlement is subject to\\n§ 1712’s attorney-fee requirements.\\n\\n When a class-action settlement provides for coupon relief, either in whole or in part,\\nCAFA requires that any attorneys’ fee award “that is attributable to the award of coupons” be\\ncalculated using the value to the class of the coupons redeemed. 28 U.S.C. § 1712(a). In this\\ncase, the district court approved the fee award established in the settlement agreement based on a\\n$6.55 million estimated total settlement value, $4.5 million of which represents the face value of\\nthe rent-credit and dance-fee payments available through the secondary pool. In a “mixed”\\nsettlement such as this, which “provides for an award of coupons to class members and also\\nprovides for equitable relief, including injunctive relief,” CAFA mandates that the attorney fee\\nrelated to the coupon relief be based on the value of the coupons actually redeemed, and the part\\nof the attorney fee not based on the coupon recovery be based on the “amount of time class\\ncounsel reasonably expended working on the action.” 28 U.S.C. § 1712(a)–(c). As the Ninth\\nCircuit explained:\\n\\n The practical effect of § 1712(c) is that the district court must perform two\\n separate calculations to fully compensate class counsel. First, under subsection\\n (a), the court must determine a reasonable contingency fee based on the actual\\n redemption value of the coupons awarded. Second, under subsection (b), the\\n court must determine a reasonable lodestar amount to compensate class counsel\\n for any non-coupon relief obtained.\\n\\nIn re HP Inkjet Printer Litig., 716 F.3d 1173, 1184–85 (9th Cir. 2013).\\n\\n In this case, the district court erred by failing to calculate the redemption value of the\\ncoupons prior to approving the attorney fee award. The proposed settlement agreement provides\\nthat Defendants agreed to pay $900,000 in direct attorney fees and, contingent on payments\\ntaken from the secondary fund, up to $300,000 in indirect attorney fees. The district court found\\nthat because the overall settlement “creates a common fund worth at least $6.55 million,” the\\n$1.2 million attorney award was reasonable. (R. 77, PID 4217–18.) In evaluating the value of\\nthis common fund, however, the district court accepted at face value the secondary pool, finding\\nthat “the parties have made a sufficient showing that the secondary pool of rent-credit and dance-\\nfee payments will give actual value to the class.” (R. 77, PID 4218.) Setting aside the fact that\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 21\\n\\n\\nthe parties made no such showing,42 the district court’s conclusion was contrary to CAFA, which\\nplainly states that the fee award for a coupon settlement “shall be based on the value to class\\nmembers of the coupons that are redeemed.” 28 U.S.C. § 1712(a). As the Seventh Circuit has\\nnoted, § 1712(a) protects against abusive settlements by requiring that “any percentage-of-\\nrecovery award in a coupon settlement be based upon a percentage of the value of the coupons\\nactually redeemed by class members, not the nominal value of the coupons merely available to\\nthe class.” In re Sw. Airlines, 799 F.3d at 708.53\\n\\n Nor is the fee award saved by the fact that the district court cross-checked the fee against\\nthe lodestar, because the district court’s ultimate calculation assumed the $6.55 million total\\nsettlement value. The district court reviewed the attorneys’ billings, subtracted unsupported fee\\nsubmissions, and calculated a total of $843,389.03 in fees for 1555.63 hours. The district court\\nthen found that “[t]he lodestar multiplier of 1.4, and the blended hourly rate of $542 are\\nreasonable given the complexity of the case, the results achieved, and considering that Plaintiffs’\\ncounsel will continue to accumulate fees while they represent the class during the administration\\nof the settlement.” (R. 77, PID 4220.) In so reasoning, the district court “reverse-engineered” a\\nmultiplier to match the lodestar fee with the fee established in the settlement agreement. In re\\nEasysaver, 906 F.3d at 759. As in In re Easysaver, the lodestar figure “lost [its] independence\\nwhen the district court used a multiplier to match the lodestar fee to the percentage-of-recovery\\nfee—which was, by definition, a percentage of the full value of the settlement, including the face\\nvalue of the coupons.” Id. The value of the secondary-pool coupons thus impermissibly\\ninformed the district court’s calculation of the lodestar.\\n\\n 2The record and the briefing in this case make clear that there is no readily available information regarding\\nlikely redemption rates. The settlement agreement in Cin-Lan contained a similar secondary credit pool, but the\\ndefendants and plaintiffs’ counsel failed to collect information regarding the actual redemption of those credits\\n(despite the settlement agreement specifically requiring them to do so). As a result, the parties here do not have the\\nresults of that process to inform the fee award in this case. As class counsel stated at the fairness hearing, “We don’t\\nknow . . . how many people are going to use the rent credits once they make that election.” (R. 105, PID 4511.)\\n 3I recognize that the attorneys’ fee award does not award counsel a full one-third of the face settlement\\namount of $6.4 million. Instead, counsel receives close to half of the cash settlement and is capped at 6.6% of the\\nsecondary pool. I also recognize that the settlement provides for injunctive relief that the district court found\\nprovided value to the class. But without determining the real value of the secondary pool, it is impossible to\\n“ensure[] that class counsel benefit only from coupons that provide actual relief to the class.” In re Easysaver,\\n906 F.3d at 755. Stated differently, one may ask whether the $900,000 cash fee award would be appropriate if only\\n10% of the secondary pool is actually redeemed.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 22\\n\\n\\n Finally, the majority states that even if the secondary pool is considered worthless, the\\ninjunctive relief provided through the settlement increases the overall value to the class by\\napproximately $3.4 million, and therefore the $900,000 cash fee award would not be\\nunreasonable. The injunctive relief may ultimately support the award, but the existing record\\nprovides insufficient support for the $3.4 million valuation. Although the district court accepted\\nas “unrebutted” Defendants’ $3.4 million estimate, the record indicates that Objectors raised\\nsignificant concerns about the reliability of the underlying data and whether any change in\\nDefendants’ clubs’ procedures was actually achieved through the settlement. Specifically,\\nObjectors asserted that Defendants’ projections overestimated the number of current dancers\\nwho would choose to become employees, thereby inflating the value of the injunctive relief. The\\ndistrict court did not address either objection, presumably because it found that the secondary\\npool sufficiently supported the fee award. And a close look at Defendants’ value calculations\\nreveals potentially dubious assumptions. For example, Defendants’ calculations assume that\\ndancers who take advantage of the injunctive relief and convert to employee status would earn\\n$173 more per shift than dancers who continue to work as independent contractors. This\\nincrease in pay is based on the questionable proposition that an employee dancer would generate\\ndouble the dance revenue that an independent contractor would. Defendants’ report provided no\\ndata to support this proposition.\\n\\n But even accepting the Defendants’ estimate of the value of the injunctive relief, the\\ndistrict court clearly found that the secondary pool provided at least some benefit to the class,\\nand evaluated the fee award on that basis. As explained above, CAFA requires the district court\\nto base its determination on the actual value of the coupons redeemed, not on speculation.\\n\\n For these reasons, I would vacate the approval of the attorneys’ fee award and remand for\\nrecalculation of the fee award consistent with CAFA.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402894/\", \"author_raw\": \"HELENE N. WHITE, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"COLE"},"judge2":{"kind":"string","value":"WHITE"},"judge3":{"kind":"string","value":"NALBANDIAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"COLE\": \", Chief\", \"WHITE\": \", Circuit\", \"NALBANDIAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625641/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jane DOES 1-2, Plaintiffs-Appellees, Eva Cabrera and Brittney Halverson (17-1801); B.D. (17-1802); C.T. (17-1827), Objectors-Appellants. v. DÉJÀ VU SERVICES, INC., Fka Déjà Vu Consulting, Inc., Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-03\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0113p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n JANE DOES 1–2, ┐\n Plaintiffs-Appellees, │\n │\n │\n EVA CABRERA and BRITTNEY HALVERSON (17-1801); │\n B.D. (17-1802); C.T. (17-1827), > Nos. 17-1801/1802/1827\n Objectors-Appellants. │\n │\n │\n v. │\n │\n DÉJÀ VU CONSULTING, INC., dba Déjà Vu of Saginaw, │\n Inc., nka Déjà Vu Services, Inc., et al., │\n │\n │\n Defendants-Appellees. │\n ┘\n\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:16-cv-10877—Stephen J. Murphy, III, District Judge.\n\n Argued: October 17, 2018\n\n Decided and Filed: June 3, 2019\n\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Harold L. Lichten, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for\nall Appellants. Jason J. Thompson, SOMERS SCHWARTZ, P.C., Southfield, Michigan, for\nJane Doe Appellees. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan,\nfor Déjà Vu Appellees. ON BRIEF: Harold L. Lichten, Shannon Liss-Riordan, Matthew\nThomson, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for Appellants in 17-\n1801. Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,\nMichigan, for Déjà Vu Appellees. Charles P. Yezbak, III, Daniel Eduardo Arciniegas, YEZBAK\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 2\n\n\nLAW OFFICES, Nashville, Tennessee, for Appellant in 17-1802. W. Allen McDonald, LACY,\nPRICE & WAGNER, P.C., Knoxville, Tennessee, for Appellant in 17-1827. Beth M. Rivers,\nPITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Jane Doe Appellees.\n\n COLE, C.J., delivered the opinion of the court in which NALBANDIAN, J., joined, and\nWHITE, J., joined in part. WHITE, J. (pp. 17–22), delivered a separate opinion dissenting in\npart.\n _________________\n\n OPINION\n _________________\n\n COLE, Chief Judge. After a class of 28,177 exotic dancers alleged that Déjà Vu dance\nclubs violated the Fair Labor Standards Act and state wage-and-hour laws, Déjà Vu and the class\nof dancers entered into a settlement agreement. The district court approved the settlement over\nthe objections of four class members who now appeal, arguing that the settlement was\nfundamentally unfair and failed to comport with procedural requirements for class action\nsettlements. Because the district court did not abuse its discretion in approving the settlement,\nwe affirm.\n\n I.\n\n This class of dancers was not the first to sue Déjà Vu for alleged Fair Labor Standards\nAct (“FLSA”) and state law violations. In 2008, a class of dancers filed a class action lawsuit in\nthe Eastern District of Michigan, alleging that two dance clubs—Cin-Lan, Inc., and Déjà Vu\nConsulting, Inc.—misclassified them as non-employees or independent contractors in violation\nof the FLSA and the Michigan Minimum Wage Act. Over the next three years, the parties\nengaged in extensive discovery and motion practice. After more than six months of negotiations,\nthey entered into a settlement agreement that provided the dancers monetary compensation and\ninjunctive relief. The district court approved the settlement (“Cin-Lan Settlement”) and retained\njurisdiction to ensure its enforcement. Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2011 WL\n13266312 (E.D. Mich. July 15, 2011).\n\n On March 10, 2016—five years after the approval of the Cin-Lan Settlement—another\ndancer (“Jane Doe 1”) filed a complaint against Déjà Vu Consulting, its affiliate dance clubs, and\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 3\n\n\nits owner Harry Mohney (collectively, “Déjà Vu”) in the Eastern District of Michigan. Jane Doe\n1 filed the complaint as both a class action under Federal Rule of Civil Procedure 23 and a\ncollective action under 29 U.S.C. § 216(b) of the FLSA, seeking to bring the action on behalf of\nherself and “[a]ll exotic dancers who worked for Defendants and were misclassified by\nDefendants as independent contractors at any time in the past three years” (collectively, “the\nDancers”). (Compl., R. 1, PageID 24–25 (italics in original).) This lawsuit involves the same\nclass counsel, many of the same dancers, one of the same defendants, and similar claims as the\ninitial Cin-Lan dispute. Specifically, the Dancers allege that Déjà Vu’s clubs violated the FLSA\nand state wage-and-hour laws by “intentionally misclassif[ying] class members as independent\ncontractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split\ngratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.”\n(Op. & Order, R. 77, PageID 4200.)1\n\n Déjà Vu filed a motion to dismiss or stay proceedings in favor of arbitration on\nSeptember 16, 2016, and it attached a copy of Jane Doe 1’s Dancer Performance Lease\nagreement, which included a clause mandating binding individual arbitration for all claims\narising out of her performances.\n\n Before the district court made any rulings on the merits, the parties began negotiating a\nsettlement agreement. On December 28, 2016, the Dancers’ attorneys notified the court that they\nhad “executed a tentative term sheet on a settlement.” (Mot. to Transfer Case, R. 22, PageID\n445.) Additionally, the Dancers filed a motion requesting an intra-district transfer of the case to\nthe same judge who retained jurisdiction over the Cin-Lan settlement, both because the case\ninvokes his continuing jurisdiction and because he was “intimately familiar with the facts and\ncircumstances of the parties’ dispute after presiding over the prior case for approximately four\nyears.” (Id. at PageID 446.) On January 4, 2017, the district court granted the motion to\ntransfer.\n\n\n\n\n 1Although the Cin-Lan case involved similar allegations, the Cin-Lan settlement did not mandate that the\nclubs convert the dancers from independent contractors to employees.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 4\n\n\n After negotiation, the parties reached a settlement agreement (“Settlement Agreement”).\nIn exchange for releasing their claims against Déjà Vu, the Settlement Agreement provides the\nDancers with injunctive and monetary relief.\n\n The injunctive relief is structured around the Settlement Agreement’s requirement that\nevery club provide its current dancers with an Entertainer Assessment Form. This assessment\ndetermines whether the dancer should be classified as an employee or an Independent\nProfessional Entertainer (“IPE”), the latter of which is akin to an independent contractor. The\nSettlement Agreement requires dancers to complete the assessment before they can perform at\nany of Déjà Vu’s clubs. The assessment must then be verified by the club’s Certified Public\nAccountant.\n\n The remaining injunctive relief turns on whether the assessment determines the dancer in\nquestion is an employee or an IPE. Under the Settlement Agreement, employees may be\nrequired to tip-out or tip-pool with the club’s other employees, but they must be paid minimum\nwage (or, where available, at the tip-credited wage). Employees will also be entitled to\ncommissions of at least 20% of their dance fees that exceed the cost of employment, as well as\n20% commissions of their sale of ‘conversation beverages,’ which are drinks that dancers\npersuade customers to buy for them. Employees will be reimbursed by the club for all license\nand permit fees required to perform at the club, and the club will provide them with two logo\ncostumes per month to wear while working. In contrast, the Settlement Agreement prevents\nDéjà Vu from imposing any work schedule upon IPEs or requiring IPEs to tip-out or tip-pool\nwith any employee. IPEs also cannot be required to wear any costume. Finally, IPEs will have\nthe right to vote in each club’s annual IPE meeting to change or modify any club policy that\naffects IPEs, which ensures that they have sufficient control over the clubs’ operations to prevent\nDéjà Vu from exerting employer-employee control over IPEs.\n\n With respect to monetary relief, the Settlement Agreement divides a total award of $6.55\nmillion into three primary categories: $1 million toward the Net Cash Payment Settlement Fund\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 5\n\n\n(“the cash pool”), $4.5 million toward Secondary Pool Remuneration (“the secondary pool”),\nand $900,000 in attorneys’ fees.2\n\n The first two categories serve as alternative forms of monetary relief for the class\nmembers. The first option is to receive a one-time payment from the cash pool. The $1 million\ncash pool includes $30,000 in Enhancement Payments for the named plaintiffs and $50,000 to\npay defendants’ Administration Costs. After subtracting these costs, the total cash pool to be\nsplit between all of the Dancers who elect to receive a one-time direct payment is $920,000.\nCash pool funds will be allocated on a point-based system that favors dancers who worked for\nthe clubs for a longer period of time, as well as dancers who worked more recently at Déjà Vu’s\nclubs.\n\n The second option is to collect settlement funds from the secondary pool in the form of\ncredits that can be used at Déjà Vu clubs. This is the default form of relief for Dancers who do\nnot opt into the cash pool: each time a class member performs at one of Déjà Vu’s clubs, credits\nfrom the secondary pool will either cover 60% of her daily rent at the club or allow her to collect\nup to $100 in dance fees. Depending on how many months the dancer has performed at the Déjà\nVu club where she collects the credits, the total amount of money she can recuperate from the\nsecondary pool is capped at $200, $1,000, or $2,000.\n\n Finally, the Settlement Agreement provides compensation for the Dancers’ attorneys.\nUnder the Settlement Agreement, Déjà Vu agrees not to oppose an award of up to $900,000 in\ndirect attorneys’ fees. Déjà Vu also agrees not to oppose an award of up to $300,000 in indirect\nattorneys’ fees to be paid out of the Dancers’ secondary pool. The Settlement Agreement\nestablishes that the indirect fees are to be calculated based on 33.3% of the value of the redeemed\nportion of the secondary pool. These indirect fees are designed to encourage the Dancers’\ncounsel to try and shore up as much participation as possible in the secondary pool by creating a\n“direct financial incentive” for their work. (Déjà Vu Br. 64 (italics in original).)\n\n\n\n\n 2The Settlement Agreement also allocates $100,000 to resolve all Private Attorneys General Act claims\nagainst its clubs in California.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 6\n\n\n On June 19, 2017, the district court approved the Settlement Agreement. In finding that\nthe parties satisfied their burden to show that the Settlement Agreement was fair, the district\ncourt turned to International Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631\n(6th Cir. 2007) (“UAW”), which established a set of factors to determine the fairness of class\naction settlements. In particular, the court stressed the first factor—the comparison between the\nrelief offered in the Settlement Agreement and the Dancers’ likelihood of success on the merits\nagainst Déjà Vu. The court emphasized the “high risk of continued litigation and the uncertain\nlikelihood of success on the merits” for the Dancers, finding that without the Settlement\nAgreement, “the vast majority of class members would recover nothing.” (Op. & Order, R. 77,\nPageID 4212, 4221.) The court also found that the Settlement Agreement “offers value to the\nclass in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to\nDefendants’ business practices, all of which directly benefit class members.” (Id. at PageID\n4212.) After analyzing the remaining UAW factors, the court concluded that the Settlement\nAgreement “is the result of a bona-fide dispute, and the terms established in the settlement are a\nfair, reasonable, and adequate resolution of the claims.” (Id. at PageID 4216.)\n\n Four members of the class—Eva Cabrera, Brittney Halverson, B.D., and C.T.\n(collectively, “the Objectors”)—objected to the settlement. The district court overruled their\nobjections, and they now appeal the approval of the Settlement Agreement. The Objectors’\narguments fall into two broad categories. First, the Objectors argue that the district court abused\nits discretion by failing to properly apply the factors that ensure the fairness of settlement\nagreements, especially with respect to the district court’s attempt to calculate the value of the\nDancers’ claims. Second, the Objectors argue that the settlement violates the procedural\nrequirements of Federal Rule of Civil Procedure 23, given the breadth of the class release and the\nnotice afforded to the unnamed class members.\n\n II.\n\n We review a district court’s approval of a class action settlement for abuse of discretion.\nIn re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013).\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 7\n\n\n A. UAW Fairness Factors\n\n In UAW, we established a seven-factor test to assess whether or not a class action\nsettlement is “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e).\n497 F.3d at 631. Those factors include: (1) the “risk of fraud or collusion,” (2) the “complexity,\nexpense and likely duration of the litigation,” (3) the “amount of discovery engaged in by the\nparties,” (4) the “likelihood of success on the merits,” (5) the “opinions of class counsel and class\nrepresentatives,” (6) the “reaction of absent class members,” and (7) the “public interest.” Id.\n\n Of the UAW factors, “[t]he most important of the factors to be considered in reviewing a\nsettlement is the probability of success on the merits.” Poplar Creek Dev. Co. v. Chesapeake\nAppalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011). Thus, we address the most important\nfactor first before proceeding to the remaining factors.\n\n 1. Likelihood of Success on the Merits\n\n A court “cannot judge the fairness of a proposed compromise without weighing the\nplaintiff’s likelihood of success on the merits against the amount and form of the relief offered in\nthe settlement.” UAW, 497 F.3d at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88\n(1981)). For this reason, all class action settlements involve a balancing of competing interests.\nWhen extinguishing the claims of a large class of people—some of whom may not even be\naware that a pending lawsuit affects their rights—courts are required to closely analyze whether\nthe claims that the unnamed class members are giving up are worth the benefits they may\nreceive. Balancing those interests is difficult in cases involving industries rife with turnover, fear\nof retaliation, and unequal bargaining interests between the class and the defendants. The district\ncourt appropriately gave a great deal of consideration to this factor.\n\n After evaluating a damages model based on records from Jane Doe 1 and one other class\nmember, as well as the high risks inherent in litigation and the potential impact of the mandatory\narbitration clause on the Dancers’ claims, the district court found that the direct benefits provided\nby the Settlement Agreement outweighed the value of the Dancers’ claims. We affirm, as the\ndistrict court did not abuse its discretion in valuing the Dancers’ claims or the Settlement\nAgreement.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 8\n\n\n i. Value of the Dancers’ Claims\n\n The Objectors’ primary claim is that the district court abused its discretion by improperly\ncalculating the value of the FLSA and state wage-and-hour claims that the Dancers were\nrelinquishing in the Settlement Agreement. As a result of limited discovery and the absence of a\nclass-wide damages model, the Objectors contend that the Settlement Agreement\nundercompensates the class. By estimating the number of dancers working at a club per shift,\nthe length of their shifts, and multiplying it by the federal minimum wage, the Objectors estimate\nthat if the class action proceeded to trial, with 64 clubs, the plaintiffs could receive up to\n$141 million dollars.3 Alternatively, the Objectors point to other dancer disputes as a basis for\ncomparison, identifying over a dozen jury trials and settlements that provide dancers with higher\nawards than the Settlement Agreement. Thus, the Objectors argue that the Settlement\nAgreement’s cash pool pales in comparison to the damages that the Dancers could receive if they\nwent to trial, and the Settlement Agreement is inadequate to justify releasing the Dancers’ claims\nagainst Déjà Vu.\n\n In evaluating settlements, courts are not required “to reach any ultimate conclusions on\nthe contested issues of fact and law which underlie the merits of the dispute, for it is the very\nuncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that\ninduce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San\nFrancisco, 688 F.2d 615, 625 (9th Cir. 1982). That sentiment is reinforced here, where Déjà Vu\nand the Dancers argue that complete, accurate class-wide models can be “impossible to construct\nin exotic dancer cases,” because “clubs do not maintain adequate records or payroll data needed\nto prepare common FLSA damage modeling.” (Jane Doe 1 Br. 32–33.)\n\n But that is not to say that the court can avoid carefully scrutinizing litigation risks in\ncomplex class actions. We have found that it can be an abuse of discretion for a district court to\n“merely recite the respective arguments of the objectors and parties, and then offer up platitudes\nabout the risks of litigation generally.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,\n825 F.3d 299, 309 (6th Cir. 2016). “Instead, the district court must specifically examine what\n\n 3This estimate is undercut by the fact that the Objectors argued at the fairness hearing below that the\nDancers could receive only $70 million at trial.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 9\n\n\nthe unnamed class members would give up in the proposed settlement, and then explain why—\ngiven their likelihood of success on the merits—the tradeoff embodied in the settlement is fair to\nunnamed members of the class.” Id.\n\n Here, the district court did not abuse its discretion in determining that the benefits of the\nSettlement Agreement outweigh the value of the Dancers’ claims. The district court specifically\nexamined what the class members were giving up based upon the available records used to\ncalculate the damages model. The damages model showed the awards that a dancer could\nreceive based on full or reduced minimum wage, as well as with or without offsetting the fees\nthat dancers received during their time at Déjà Vu. By accounting for each of these factors and\npresenting the district court with an array of awards potentially available to the Dancers, the\nmodel offered some insight into the variation in recovery under different states’ laws. Thus,\nalthough the court acknowledged that the damages model was imperfect based on the lack of\nrecords for many class members, it still found that the model was “useful to determine class\nmembers’ range of possible recovery.” (Op. & Order, R. 77, PageID 4206.) Additionally, in\nlight of the precedent directing courts to look to the risks faced by the parties at hand rather than\nthe general risks of litigation, the district court did not abuse its discretion in finding that the\nmodel was more helpful than the Objectors’ comparisons to sums awarded in other class\nactions—as the court found, “[t]he key question is not Plaintiffs’ likelihood of success against\nthe defendants in the cases cited by the objectors[,] but their likelihood of success against\nDefendants here.” (Id. at PageID 4210.)\n\n Moreover, the court did not rely solely on the damages model in assessing the value of\nthe Dancers’ claims. Before approving the settlement, the district court also considered possible\ncounterclaims against the Dancers, the potential of an unfavorable verdict finding that the\nDancers should be classified as independent contractors, and the risk that the Dancers would\nhave to face mandatory and binding arbitration in compliance with the arbitration clauses in their\nperformance leases. (Id.)\n\n The high risk of arbitration in this case was recently confirmed by the Supreme Court’s\nopinion in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which transformed the lay of the land\nfor FLSA actions. Before Epic Systems, FLSA plaintiffs had successfully blocked the\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 10\n\n\nenforcement of arbitration clauses in employment contracts under the Federal Arbitration Act’s\n“saving clause” by arguing that individual arbitration clauses in employment contracts violated\nfederal law protecting employees’ ability to engage in class or collective actions. Id. at 1620.\nEpic Systems foreclosed that argument. Id. at 1623, 1626, 1632. In reliance upon Epic Systems,\nwe have since held that the FLSA’s collective action guarantees do “not displace the Arbitration\nAct’s requirement that we enforce the employees’ agreements as written.” Gaffers v. Kelly\nServs., 900 F.3d 293, 296 (6th Cir. 2018); see also McGrew v. VCG Holding Corp., 735 F.\nApp’x 210, 211 (6th Cir. 2018) (finding that “individual arbitration agreements are enforceable\nagainst both employees and independent contractors” in case involving exotic dancers). These\nrulings highlight the uphill battle the Dancers would face in attempting to litigate their claims.\n\n If the arbitration clauses in the Dancers’ performance leases are enforced, proceeding\nwith arbitration poses significant risks to many of the Dancers. One major concern is that the\nDancers’ performance leases contain arbitration provisions requiring the losing party to pay the\nprevailing party’s attorneys’ fees. The Objectors also concede that a substantial number of the\nDancers fear retaliation for bringing a claim against the clubs. In sum, the district court did not\nabuse its discretion in finding that many of the Dancers would receive little, if any, relief in lieu\nof the Settlement Agreement. See In re Dry Max Pampers Litig., 724 F.3d at 723\n(“The conventional argument for class action lawsuits is that the majority of class members’\nclaims would not otherwise be worth bringing.”).\n\n ii. Value of the Settlement Agreement\n\n The district court also did not abuse its discretion in evaluating the benefits provided by\nthe Settlement Agreement’s injunctive and monetary relief. We reject the Objectors’ contention\nthat the credits available through the secondary pool function as coupons that cannot be counted\ntoward the total value of the Settlement Agreement under the Class Action Fairness Act. See\n28 U.S.C. § 1712. The Objectors’ main support for that proposition, In re Easysaver Rewards\nLitig., 906 F.3d 747 (9th Cir. 2018), is readily distinguishable. In contrast with coupon\nsettlements that require an individual to buy a product or service before receiving the promised\nbenefits, id. at 755, the secondary pool does not require class members to “hand over more of\ntheir own money” to be eligible to redeem the benefits of the Settlement Agreement in this case;\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 11\n\n\nhere, the cash pool offers an alternative form of relief to dancers who prefer to cut ties with Déjà\nVu. Because the Dancers can choose to receive compensation from the cash pool regardless of\nwhether they continued working at Déjà Vu, the Settlement Agreement cannot be understood to\nrequire the Dancers to “reengag[e] in the same . . . activity that they believe led to their injury.”\nId. at 757.\n\n When compared against the risks involved in litigating or arbitrating the Dancers’ claims,\nthe value of the Settlement Agreement is significant. The injunctive relief mandates extensive\nchanges to Déjà Vu’s business practices, and both the $1 million cash pool and the $4.5 million\nsecondary pool are available to provide financial compensation to the Dancers in the form that\nbest suits each individual dancer’s circumstances. We find that the district court did not abuse its\ndiscretion in finding that the tangible benefits afforded to class members as a result of the\nSettlement Agreement outweigh the value of the volatile claims that the Dancers released.\n\n 2. Remaining UAW Factors\n\n UAW also instructs courts to consider the risk of fraud or collusion. UAW, 497 F.3d at\n631. The Objectors argue that the Settlement Agreement promotes collusion between the\nDancers’ counsel and Déjà Vu’s counsel. Specifically, the Objectors take issue with the\nSettlement Agreement’s “clear-sailing clause,” which provides that Déjà Vu “agree[s] not to\nobject to a request” for up to $900,000 of direct attorneys’ fees and up to $300,000 of indirect\nattorneys’ fees. (Settlement Agreement, R. 41-2, PageID 1173.) The Objectors argue that the\n“attorneys’ fees sought by Class Counsel . . . dwarf[] the recovery of the Class.” (C.T. Br. 29.)\nThe district court correctly rejected this argument. “Not every ‘clear sailing provision’\ndemonstrates collusion.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 426 (6th Cir. 2012).\nAdditionally, the fee award is not disproportionate to the recovery of the class. On one hand,\nassuming that the Dancers fully deplete the secondary pool and class counsel receive the full\namount of indirect fees, the attorneys’ fees would represent only 23% of the total settlement\naward, even without including the value of injunctive relief. On the other hand, assuming that\nnot a single dancer opts into the secondary pool, the $900,000 in attorneys’ fees would represent\nonly 20% of the combined value of the cash pool and the district court’s approximation of the\nvalue of the injunctive relief. It is not abnormal for negotiated attorneys’ fee awards to comprise\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 12\n\n\n20% to 30% of the total award. See Waters v. Intern. Precious Metal Corp., 190 F.3d 1291,\n1294 (11th Cir. 1999); Gooch, 672 F.3d at 426. Accordingly, the district court did not abuse its\ndiscretion in finding that this factor weighs in favor of approval.\n\n Another UAW factor is the complexity, expense, and likely duration of the litigation.\n497 F.3d at 631. The district court noted that “[t]his case presents complex legal issues because\nit combines a Rule 23 class action with a FLSA collective action.” (Op. & Order, R. 77, PageID\n4214.) Indeed, the Cin-Lan settlement illustrates the complexity of an FLSA class action claim\ninvolving exotic dancers. There, plaintiffs litigated against defendants for three years and\nengaged in extensive discovery and motion practice before entering into a final settlement\nagreement. In contrast, the Settlement Agreement in this case conserves judicial resources by\nconsolidating eight other lawsuits and administrative proceedings into the present Settlement\nAgreement. The district court did not abuse its discretion in finding that this factor cuts in favor\nof approving the Settlement Agreement.\n\n The next UAW factor is the amount of discovery engaged in by the parties as a factor in\napproving settlements. 497 F.3d at 631. The Objectors argue that the district court abused its\ndiscretion by approving the settlement without requiring the parties to engage in discovery,\nwhich led to class counsel undervaluing the class’s claims and creating a financial windfall for\nclass counsel. But courts have held that settlements are permissible where, “notwithstanding the\nstatus of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the\nfacts of their case.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir.\n1981). The Cin-Lan case, which involved extensive discovery, provided the Dancers’ counsel\nwith a vehicle to obtain the necessary information. This case involves the same counsel\nlitigating similar claims on behalf of many of the same dancers against one of the same\ndefendants. As the district court found, the parties in this case “made a sufficient showing of\ninformal discovery based on their efforts in Cin-Lan, when [the same class counsel] served\n13 interrogatories and 87 requests for production on each of the three [D]efendants, took\n13 depositions of Defendants’ officers and managers, and filed numerous subpoenas on third\nparties.” (Op. & Order, R. 77, PageID 4214.) Because of the substantial overlap between the\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 13\n\n\ntwo cases, the district court did not abuse its discretion in finding that the parties’ informal\ndiscovery from Cin-Lan was sufficient.\n\n Two UAW factors focus on the class’s response to the proposed settlement: courts are\nrequired to consider the opinions of class counsel and class representatives, as well as the\nreactions of absent class members. 497 F.3d at 631. Jane Doe 1, the named representative, is\nnot among the Objectors in this case—she has a favorable view of the settlement. And both Déjà\nVu and the Dancers agreed that the counsel representing both parties had extensive experience,\nwhich supports the district court’s finding that counsels’ positive outlook toward the fairness of\nthe settlement weighed in favor of approving the Settlement Agreement. The settlement\nagreement has also received a relatively positive response from absent class members. The class\nconsists of 28,177 current and former dancers. Of those, 24,575 notices were delivered, which\namounts to nearly 88% of the class. And of the dancers that received notices, by the time the\ncourt held its fairness hearing, 19% of the class—or 4,623 dancers—opted-in to the settlement,\nwhich exceeded the parties’ expected 15% opt-in rate. In contrast, only 66 dancers opted-out of\nthe settlement, or 0.2%, and there were only six objectors to the settlement, or 0.02%. The\nObjectors’ only challenge to these two factors is their contention that the district court afforded\ntoo much deference to counsel. But the court expressly acknowledged that counsel’s opinions\nwere “by no means dispositive.” (Op. & Order, R. 77, PageID 4215.) Thus, the district court did\nnot abuse its discretion in finding that the level of support and participation from the class\nsupported approval of the Settlement Agreement.\n\n The final UAW factor is the public interest. 497 F.3d at 631. Courts have held that “there\nis a strong public interest in encouraging settlement of complex litigation and class action suits\nbecause they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial\nresources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003). At the\nsame time, courts have also found that the enforcing the FLSA furthers an important interest in\n“encouraging employees and others to ensure that employers comply with laws governing\nemployment.” Levan v. Sears, Roebuck & Co., 984 F. Supp. 2d 855, 871 (E.D. Tenn. 2013).\nThe district court concluded that this Settlement Agreement achieves both purposes: the\nsettlement “puts an end to ‘potentially long and protracted litigation,’” and it also “mandates\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 14\n\n\nlong-term structural changes to Defendants’ business practices designed to ensure workers are\naccurately classified and employees receive appropriate wages and legal protections.” (Op.\n& Order, R. 77, PageID 4216.) We agree. Therefore, the district court did not abuse its\ndiscretion in finding that this factor weighed in favor of approving the Settlement Agreement as\nwell.\n\n B. Rule 23 Procedural Requirements\n\n The Objectors also argue that the settlement violates the procedural requirements of\nFederal Rule of Civil Procedure 23, because the class release is impermissibly broad and the\nclass notice failed to adequately apprise the class members of their rights. We address each\nargument in turn.\n\n 1. Breadth of Class Release\n\n The Settlement Agreement defines the “Settlement Class Members’ Released Claims” as\n“all Claims asserted in the Action, or to be asserted in the Action by way of the amendment\ncontemplated in this Agreement, and any and all Claims of any conceivable kind or nature\nwhatsoever that are based on such pleadings or that are reasonably related thereto (except only\nfor those under the FLSA).” (Settlement Agreement, R. 41-2, PageID 1160.) The Settlement\nAgreement goes on to list ten categories of state law claims it specifically includes within this\ndefinition, including employment, wage, and labor claims against Déjà Vu. The Objectors claim\nthat a class release of this breadth cannot satisfy the “identical factual predicate doctrine”\noutlined by the Second Circuit in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., which limits class\nreleases to “claims that share the same integral facts as settled claims, provided that the released\nclaims are adequately represented prior to settlement.” 396 F.3d 96, 106 (2d Cir. 2005). As with\nthe remainder of the district court’s approval of the Settlement Agreement, we review the district\ncourt’s determination on this issue for abuse of discretion. Moulton v. U.S. Steel Corp., 581 F.3d\n344, 349 (6th Cir. 2009).\n\n This court has held that “the question is not whether the definition of the claim in the\ncomplaint and the definition of the claim in the release overlap perfectly; it is whether the\nreleased claims share a ‘factual predicate’ with the claims pled in the complaint.” Moulton,\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 15\n\n\n581 F.3d at 349 (internal citations omitted). The claims released in the Settlement Agreement\nshare that factual predicate, as the release specifically cabins the categories of relinquished\nclaims to those “based upon” or “reasonably related” to the pleadings and claims asserted in the\nSettlement Agreement. Therefore, the Objectors’ argument that the release covers claims\n“completely unrelated to the lawsuit” lacks merit. (Cabrera Br. 54 (emphasis in original).)\n\n 2. Adequacy of Notice to Class Members\n\n Finally, the Objectors claim that the class notice was inadequate to apprise the class\nmembers of their rights. Rule 23(c)(2)(b) requires the class to provide notice of the nature of the\naction; the definition of the class certified; the class claims, issues, or defenses; information on\nhow a class member can enter an appearance with their lawyer; information on how class\nmembers can opt into or out of the settlement; and the binding effect of the settlement\nagreement. Additionally, we have held that “due process requires that notice to the class be\nreasonably calculated, under all the circumstances, to apprise interested parties of the pendency\nof the action and afford them an opportunity to present their objections.” Vassalle v. Midland\nFunding LLC, 708 F.3d 747, 759 (6th Cir. 2013). We review the adequacy of class notice de\nnovo. Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).\n\n The notice that the Dancers provided to the class covered all of the bases set out in Rule\n23(c)(2)(b). Still, the Objectors advance several arguments for why the notice failed to comport\nwith the due process requirements outlined above.\n\n First, the Objectors contend that the notice mischaracterized the scope of the release.\nThis argument fails. The notice stated that, by staying in the class, a dancer would “give up [the]\nright to sue Deja Vu . . . on any state law claims later,” and that all class members “will have\nreleased all Defendants, including all of the Deja Vu–Affiliated Nightclubs, from any further\nclaims related to the matters raised in this lawsuit” such that class members “cannot ever sue\nany of the Defendants about these issues based upon conduct that occurred prior to the Effective\nDate of the settlement.” (Notice of Settlement, R. 37-1, PageID 1036, 1041–42.) The class\nnotice accurately captured the scope of the release. See supra at 14.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 16\n\n\n Second, the Objectors argue that the notice provided was unclear with respect to how the\nsettlement would be split among the Dancers. But the Objectors cite no authority that requires a\nnotice to state how much money each class member would receive, nor do they explain how the\nnotice could have accurately stated the amount each dancer was eligible to receive from the cash\npool before knowing the total number of dancers who opted to participate in the cash pool. The\nnotice appropriately details the two forms of monetary relief, including the total cash pool\namount and the structure and value of the secondary pool credits, which is reasonable under the\ncircumstances.\n\n Third, the Objectors claim that the notice was deficient because it failed to list “the 10\nprior-filed class and collective actions against some of these clubs in which class members could\nhave pursued their claims as an alternative to joining this action.” (Cabrera Br. 55.) For support,\nthe Objectors point to Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a case in\nwhich the Objectors claim that the Seventh Circuit reversed the approval of a settlement because\nof a failure to inform class members of a pending state case. But the Objectors oversell the\nholding in Mirfasihi, which was rooted in the fact that many class members could have recovered\nin the pending cases but were entitled to absolutely no recovery in the action in question. See id.\nat 785. The Seventh Circuit expressly stated that, in other contexts, notice of pending suits is not\na “requirement[] of an acceptable settlement.” Id. Here, where the Settlement Agreement\nprovides some monetary relief to every class member and compels Déjà Vu to change its\nbusiness practices through injunctive relief, failure to provide notice of other pending suits does\nnot render the class notice unreasonable. For those reasons, the notice comports with the\nrequirements of due process.\n\n III.\n\n We affirm the judgment of the district court.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 17\n\n\n _________________\n\n OPINION\n _________________\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jane DOES 1-2, Plaintiffs-Appellees, Eva Cabrera and Brittney Halverson (17-1801); B.D. (17-1802); C.T. (17-1827), Objectors-Appellants. v. DÉJÀ VU SERVICES, INC., Fka Déjà Vu Consulting, Inc., Et Al., Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-03\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0113p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n JANE DOES 1–2, ┐\\n Plaintiffs-Appellees, │\\n │\\n │\\n EVA CABRERA and BRITTNEY HALVERSON (17-1801); │\\n B.D. (17-1802); C.T. (17-1827), > Nos. 17-1801/1802/1827\\n Objectors-Appellants. │\\n │\\n │\\n v. │\\n │\\n DÉJÀ VU CONSULTING, INC., dba Déjà Vu of Saginaw, │\\n Inc., nka Déjà Vu Services, Inc., et al., │\\n │\\n │\\n Defendants-Appellees. │\\n ┘\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:16-cv-10877—Stephen J. Murphy, III, District Judge.\\n\\n Argued: October 17, 2018\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Harold L. Lichten, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for\\nall Appellants. Jason J. Thompson, SOMERS SCHWARTZ, P.C., Southfield, Michigan, for\\nJane Doe Appellees. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan,\\nfor Déjà Vu Appellees. ON BRIEF: Harold L. Lichten, Shannon Liss-Riordan, Matthew\\nThomson, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for Appellants in 17-\\n1801. Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,\\nMichigan, for Déjà Vu Appellees. Charles P. Yezbak, III, Daniel Eduardo Arciniegas, YEZBAK\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 2\\n\\n\\nLAW OFFICES, Nashville, Tennessee, for Appellant in 17-1802. W. Allen McDonald, LACY,\\nPRICE & WAGNER, P.C., Knoxville, Tennessee, for Appellant in 17-1827. Beth M. Rivers,\\nPITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Jane Doe Appellees.\\n\\n COLE, C.J., delivered the opinion of the court in which NALBANDIAN, J., joined, and\\nWHITE, J., joined in part. WHITE, J. (pp. 17–22), delivered a separate opinion dissenting in\\npart.\\n _________________\\n\\n OPINION\\n _________________\\n\\n COLE, Chief Judge. After a class of 28,177 exotic dancers alleged that Déjà Vu dance\\nclubs violated the Fair Labor Standards Act and state wage-and-hour laws, Déjà Vu and the class\\nof dancers entered into a settlement agreement. The district court approved the settlement over\\nthe objections of four class members who now appeal, arguing that the settlement was\\nfundamentally unfair and failed to comport with procedural requirements for class action\\nsettlements. Because the district court did not abuse its discretion in approving the settlement,\\nwe affirm.\\n\\n I.\\n\\n This class of dancers was not the first to sue Déjà Vu for alleged Fair Labor Standards\\nAct (“FLSA”) and state law violations. In 2008, a class of dancers filed a class action lawsuit in\\nthe Eastern District of Michigan, alleging that two dance clubs—Cin-Lan, Inc., and Déjà Vu\\nConsulting, Inc.—misclassified them as non-employees or independent contractors in violation\\nof the FLSA and the Michigan Minimum Wage Act. Over the next three years, the parties\\nengaged in extensive discovery and motion practice. After more than six months of negotiations,\\nthey entered into a settlement agreement that provided the dancers monetary compensation and\\ninjunctive relief. The district court approved the settlement (“Cin-Lan Settlement”) and retained\\njurisdiction to ensure its enforcement. Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2011 WL\\n13266312 (E.D. Mich. July 15, 2011).\\n\\n On March 10, 2016—five years after the approval of the Cin-Lan Settlement—another\\ndancer (“Jane Doe 1”) filed a complaint against Déjà Vu Consulting, its affiliate dance clubs, and\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 3\\n\\n\\nits owner Harry Mohney (collectively, “Déjà Vu”) in the Eastern District of Michigan. Jane Doe\\n1 filed the complaint as both a class action under Federal Rule of Civil Procedure 23 and a\\ncollective action under 29 U.S.C. § 216(b) of the FLSA, seeking to bring the action on behalf of\\nherself and “[a]ll exotic dancers who worked for Defendants and were misclassified by\\nDefendants as independent contractors at any time in the past three years” (collectively, “the\\nDancers”). (Compl., R. 1, PageID 24–25 (italics in original).) This lawsuit involves the same\\nclass counsel, many of the same dancers, one of the same defendants, and similar claims as the\\ninitial Cin-Lan dispute. Specifically, the Dancers allege that Déjà Vu’s clubs violated the FLSA\\nand state wage-and-hour laws by “intentionally misclassif[ying] class members as independent\\ncontractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split\\ngratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.”\\n(Op. & Order, R. 77, PageID 4200.)1\\n\\n Déjà Vu filed a motion to dismiss or stay proceedings in favor of arbitration on\\nSeptember 16, 2016, and it attached a copy of Jane Doe 1’s Dancer Performance Lease\\nagreement, which included a clause mandating binding individual arbitration for all claims\\narising out of her performances.\\n\\n Before the district court made any rulings on the merits, the parties began negotiating a\\nsettlement agreement. On December 28, 2016, the Dancers’ attorneys notified the court that they\\nhad “executed a tentative term sheet on a settlement.” (Mot. to Transfer Case, R. 22, PageID\\n445.) Additionally, the Dancers filed a motion requesting an intra-district transfer of the case to\\nthe same judge who retained jurisdiction over the Cin-Lan settlement, both because the case\\ninvokes his continuing jurisdiction and because he was “intimately familiar with the facts and\\ncircumstances of the parties’ dispute after presiding over the prior case for approximately four\\nyears.” (Id. at PageID 446.) On January 4, 2017, the district court granted the motion to\\ntransfer.\\n\\n\\n\\n\\n 1Although the Cin-Lan case involved similar allegations, the Cin-Lan settlement did not mandate that the\\nclubs convert the dancers from independent contractors to employees.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 4\\n\\n\\n After negotiation, the parties reached a settlement agreement (“Settlement Agreement”).\\nIn exchange for releasing their claims against Déjà Vu, the Settlement Agreement provides the\\nDancers with injunctive and monetary relief.\\n\\n The injunctive relief is structured around the Settlement Agreement’s requirement that\\nevery club provide its current dancers with an Entertainer Assessment Form. This assessment\\ndetermines whether the dancer should be classified as an employee or an Independent\\nProfessional Entertainer (“IPE”), the latter of which is akin to an independent contractor. The\\nSettlement Agreement requires dancers to complete the assessment before they can perform at\\nany of Déjà Vu’s clubs. The assessment must then be verified by the club’s Certified Public\\nAccountant.\\n\\n The remaining injunctive relief turns on whether the assessment determines the dancer in\\nquestion is an employee or an IPE. Under the Settlement Agreement, employees may be\\nrequired to tip-out or tip-pool with the club’s other employees, but they must be paid minimum\\nwage (or, where available, at the tip-credited wage). Employees will also be entitled to\\ncommissions of at least 20% of their dance fees that exceed the cost of employment, as well as\\n20% commissions of their sale of ‘conversation beverages,’ which are drinks that dancers\\npersuade customers to buy for them. Employees will be reimbursed by the club for all license\\nand permit fees required to perform at the club, and the club will provide them with two logo\\ncostumes per month to wear while working. In contrast, the Settlement Agreement prevents\\nDéjà Vu from imposing any work schedule upon IPEs or requiring IPEs to tip-out or tip-pool\\nwith any employee. IPEs also cannot be required to wear any costume. Finally, IPEs will have\\nthe right to vote in each club’s annual IPE meeting to change or modify any club policy that\\naffects IPEs, which ensures that they have sufficient control over the clubs’ operations to prevent\\nDéjà Vu from exerting employer-employee control over IPEs.\\n\\n With respect to monetary relief, the Settlement Agreement divides a total award of $6.55\\nmillion into three primary categories: $1 million toward the Net Cash Payment Settlement Fund\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 5\\n\\n\\n(“the cash pool”), $4.5 million toward Secondary Pool Remuneration (“the secondary pool”),\\nand $900,000 in attorneys’ fees.2\\n\\n The first two categories serve as alternative forms of monetary relief for the class\\nmembers. The first option is to receive a one-time payment from the cash pool. The $1 million\\ncash pool includes $30,000 in Enhancement Payments for the named plaintiffs and $50,000 to\\npay defendants’ Administration Costs. After subtracting these costs, the total cash pool to be\\nsplit between all of the Dancers who elect to receive a one-time direct payment is $920,000.\\nCash pool funds will be allocated on a point-based system that favors dancers who worked for\\nthe clubs for a longer period of time, as well as dancers who worked more recently at Déjà Vu’s\\nclubs.\\n\\n The second option is to collect settlement funds from the secondary pool in the form of\\ncredits that can be used at Déjà Vu clubs. This is the default form of relief for Dancers who do\\nnot opt into the cash pool: each time a class member performs at one of Déjà Vu’s clubs, credits\\nfrom the secondary pool will either cover 60% of her daily rent at the club or allow her to collect\\nup to $100 in dance fees. Depending on how many months the dancer has performed at the Déjà\\nVu club where she collects the credits, the total amount of money she can recuperate from the\\nsecondary pool is capped at $200, $1,000, or $2,000.\\n\\n Finally, the Settlement Agreement provides compensation for the Dancers’ attorneys.\\nUnder the Settlement Agreement, Déjà Vu agrees not to oppose an award of up to $900,000 in\\ndirect attorneys’ fees. Déjà Vu also agrees not to oppose an award of up to $300,000 in indirect\\nattorneys’ fees to be paid out of the Dancers’ secondary pool. The Settlement Agreement\\nestablishes that the indirect fees are to be calculated based on 33.3% of the value of the redeemed\\nportion of the secondary pool. These indirect fees are designed to encourage the Dancers’\\ncounsel to try and shore up as much participation as possible in the secondary pool by creating a\\n“direct financial incentive” for their work. (Déjà Vu Br. 64 (italics in original).)\\n\\n\\n\\n\\n 2The Settlement Agreement also allocates $100,000 to resolve all Private Attorneys General Act claims\\nagainst its clubs in California.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 6\\n\\n\\n On June 19, 2017, the district court approved the Settlement Agreement. In finding that\\nthe parties satisfied their burden to show that the Settlement Agreement was fair, the district\\ncourt turned to International Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631\\n(6th Cir. 2007) (“UAW”), which established a set of factors to determine the fairness of class\\naction settlements. In particular, the court stressed the first factor—the comparison between the\\nrelief offered in the Settlement Agreement and the Dancers’ likelihood of success on the merits\\nagainst Déjà Vu. The court emphasized the “high risk of continued litigation and the uncertain\\nlikelihood of success on the merits” for the Dancers, finding that without the Settlement\\nAgreement, “the vast majority of class members would recover nothing.” (Op. & Order, R. 77,\\nPageID 4212, 4221.) The court also found that the Settlement Agreement “offers value to the\\nclass in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to\\nDefendants’ business practices, all of which directly benefit class members.” (Id. at PageID\\n4212.) After analyzing the remaining UAW factors, the court concluded that the Settlement\\nAgreement “is the result of a bona-fide dispute, and the terms established in the settlement are a\\nfair, reasonable, and adequate resolution of the claims.” (Id. at PageID 4216.)\\n\\n Four members of the class—Eva Cabrera, Brittney Halverson, B.D., and C.T.\\n(collectively, “the Objectors”)—objected to the settlement. The district court overruled their\\nobjections, and they now appeal the approval of the Settlement Agreement. The Objectors’\\narguments fall into two broad categories. First, the Objectors argue that the district court abused\\nits discretion by failing to properly apply the factors that ensure the fairness of settlement\\nagreements, especially with respect to the district court’s attempt to calculate the value of the\\nDancers’ claims. Second, the Objectors argue that the settlement violates the procedural\\nrequirements of Federal Rule of Civil Procedure 23, given the breadth of the class release and the\\nnotice afforded to the unnamed class members.\\n\\n II.\\n\\n We review a district court’s approval of a class action settlement for abuse of discretion.\\nIn re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 7\\n\\n\\n A. UAW Fairness Factors\\n\\n In UAW, we established a seven-factor test to assess whether or not a class action\\nsettlement is “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e).\\n497 F.3d at 631. Those factors include: (1) the “risk of fraud or collusion,” (2) the “complexity,\\nexpense and likely duration of the litigation,” (3) the “amount of discovery engaged in by the\\nparties,” (4) the “likelihood of success on the merits,” (5) the “opinions of class counsel and class\\nrepresentatives,” (6) the “reaction of absent class members,” and (7) the “public interest.” Id.\\n\\n Of the UAW factors, “[t]he most important of the factors to be considered in reviewing a\\nsettlement is the probability of success on the merits.” Poplar Creek Dev. Co. v. Chesapeake\\nAppalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011). Thus, we address the most important\\nfactor first before proceeding to the remaining factors.\\n\\n 1. Likelihood of Success on the Merits\\n\\n A court “cannot judge the fairness of a proposed compromise without weighing the\\nplaintiff’s likelihood of success on the merits against the amount and form of the relief offered in\\nthe settlement.” UAW, 497 F.3d at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88\\n(1981)). For this reason, all class action settlements involve a balancing of competing interests.\\nWhen extinguishing the claims of a large class of people—some of whom may not even be\\naware that a pending lawsuit affects their rights—courts are required to closely analyze whether\\nthe claims that the unnamed class members are giving up are worth the benefits they may\\nreceive. Balancing those interests is difficult in cases involving industries rife with turnover, fear\\nof retaliation, and unequal bargaining interests between the class and the defendants. The district\\ncourt appropriately gave a great deal of consideration to this factor.\\n\\n After evaluating a damages model based on records from Jane Doe 1 and one other class\\nmember, as well as the high risks inherent in litigation and the potential impact of the mandatory\\narbitration clause on the Dancers’ claims, the district court found that the direct benefits provided\\nby the Settlement Agreement outweighed the value of the Dancers’ claims. We affirm, as the\\ndistrict court did not abuse its discretion in valuing the Dancers’ claims or the Settlement\\nAgreement.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 8\\n\\n\\n i. Value of the Dancers’ Claims\\n\\n The Objectors’ primary claim is that the district court abused its discretion by improperly\\ncalculating the value of the FLSA and state wage-and-hour claims that the Dancers were\\nrelinquishing in the Settlement Agreement. As a result of limited discovery and the absence of a\\nclass-wide damages model, the Objectors contend that the Settlement Agreement\\nundercompensates the class. By estimating the number of dancers working at a club per shift,\\nthe length of their shifts, and multiplying it by the federal minimum wage, the Objectors estimate\\nthat if the class action proceeded to trial, with 64 clubs, the plaintiffs could receive up to\\n$141 million dollars.3 Alternatively, the Objectors point to other dancer disputes as a basis for\\ncomparison, identifying over a dozen jury trials and settlements that provide dancers with higher\\nawards than the Settlement Agreement. Thus, the Objectors argue that the Settlement\\nAgreement’s cash pool pales in comparison to the damages that the Dancers could receive if they\\nwent to trial, and the Settlement Agreement is inadequate to justify releasing the Dancers’ claims\\nagainst Déjà Vu.\\n\\n In evaluating settlements, courts are not required “to reach any ultimate conclusions on\\nthe contested issues of fact and law which underlie the merits of the dispute, for it is the very\\nuncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that\\ninduce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San\\nFrancisco, 688 F.2d 615, 625 (9th Cir. 1982). That sentiment is reinforced here, where Déjà Vu\\nand the Dancers argue that complete, accurate class-wide models can be “impossible to construct\\nin exotic dancer cases,” because “clubs do not maintain adequate records or payroll data needed\\nto prepare common FLSA damage modeling.” (Jane Doe 1 Br. 32–33.)\\n\\n But that is not to say that the court can avoid carefully scrutinizing litigation risks in\\ncomplex class actions. We have found that it can be an abuse of discretion for a district court to\\n“merely recite the respective arguments of the objectors and parties, and then offer up platitudes\\nabout the risks of litigation generally.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,\\n825 F.3d 299, 309 (6th Cir. 2016). “Instead, the district court must specifically examine what\\n\\n 3This estimate is undercut by the fact that the Objectors argued at the fairness hearing below that the\\nDancers could receive only $70 million at trial.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 9\\n\\n\\nthe unnamed class members would give up in the proposed settlement, and then explain why—\\ngiven their likelihood of success on the merits—the tradeoff embodied in the settlement is fair to\\nunnamed members of the class.” Id.\\n\\n Here, the district court did not abuse its discretion in determining that the benefits of the\\nSettlement Agreement outweigh the value of the Dancers’ claims. The district court specifically\\nexamined what the class members were giving up based upon the available records used to\\ncalculate the damages model. The damages model showed the awards that a dancer could\\nreceive based on full or reduced minimum wage, as well as with or without offsetting the fees\\nthat dancers received during their time at Déjà Vu. By accounting for each of these factors and\\npresenting the district court with an array of awards potentially available to the Dancers, the\\nmodel offered some insight into the variation in recovery under different states’ laws. Thus,\\nalthough the court acknowledged that the damages model was imperfect based on the lack of\\nrecords for many class members, it still found that the model was “useful to determine class\\nmembers’ range of possible recovery.” (Op. & Order, R. 77, PageID 4206.) Additionally, in\\nlight of the precedent directing courts to look to the risks faced by the parties at hand rather than\\nthe general risks of litigation, the district court did not abuse its discretion in finding that the\\nmodel was more helpful than the Objectors’ comparisons to sums awarded in other class\\nactions—as the court found, “[t]he key question is not Plaintiffs’ likelihood of success against\\nthe defendants in the cases cited by the objectors[,] but their likelihood of success against\\nDefendants here.” (Id. at PageID 4210.)\\n\\n Moreover, the court did not rely solely on the damages model in assessing the value of\\nthe Dancers’ claims. Before approving the settlement, the district court also considered possible\\ncounterclaims against the Dancers, the potential of an unfavorable verdict finding that the\\nDancers should be classified as independent contractors, and the risk that the Dancers would\\nhave to face mandatory and binding arbitration in compliance with the arbitration clauses in their\\nperformance leases. (Id.)\\n\\n The high risk of arbitration in this case was recently confirmed by the Supreme Court’s\\nopinion in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which transformed the lay of the land\\nfor FLSA actions. Before Epic Systems, FLSA plaintiffs had successfully blocked the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 10\\n\\n\\nenforcement of arbitration clauses in employment contracts under the Federal Arbitration Act’s\\n“saving clause” by arguing that individual arbitration clauses in employment contracts violated\\nfederal law protecting employees’ ability to engage in class or collective actions. Id. at 1620.\\nEpic Systems foreclosed that argument. Id. at 1623, 1626, 1632. In reliance upon Epic Systems,\\nwe have since held that the FLSA’s collective action guarantees do “not displace the Arbitration\\nAct’s requirement that we enforce the employees’ agreements as written.” Gaffers v. Kelly\\nServs., 900 F.3d 293, 296 (6th Cir. 2018); see also McGrew v. VCG Holding Corp., 735 F.\\nApp’x 210, 211 (6th Cir. 2018) (finding that “individual arbitration agreements are enforceable\\nagainst both employees and independent contractors” in case involving exotic dancers). These\\nrulings highlight the uphill battle the Dancers would face in attempting to litigate their claims.\\n\\n If the arbitration clauses in the Dancers’ performance leases are enforced, proceeding\\nwith arbitration poses significant risks to many of the Dancers. One major concern is that the\\nDancers’ performance leases contain arbitration provisions requiring the losing party to pay the\\nprevailing party’s attorneys’ fees. The Objectors also concede that a substantial number of the\\nDancers fear retaliation for bringing a claim against the clubs. In sum, the district court did not\\nabuse its discretion in finding that many of the Dancers would receive little, if any, relief in lieu\\nof the Settlement Agreement. See In re Dry Max Pampers Litig., 724 F.3d at 723\\n(“The conventional argument for class action lawsuits is that the majority of class members’\\nclaims would not otherwise be worth bringing.”).\\n\\n ii. Value of the Settlement Agreement\\n\\n The district court also did not abuse its discretion in evaluating the benefits provided by\\nthe Settlement Agreement’s injunctive and monetary relief. We reject the Objectors’ contention\\nthat the credits available through the secondary pool function as coupons that cannot be counted\\ntoward the total value of the Settlement Agreement under the Class Action Fairness Act. See\\n28 U.S.C. § 1712. The Objectors’ main support for that proposition, In re Easysaver Rewards\\nLitig., 906 F.3d 747 (9th Cir. 2018), is readily distinguishable. In contrast with coupon\\nsettlements that require an individual to buy a product or service before receiving the promised\\nbenefits, id. at 755, the secondary pool does not require class members to “hand over more of\\ntheir own money” to be eligible to redeem the benefits of the Settlement Agreement in this case;\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 11\\n\\n\\nhere, the cash pool offers an alternative form of relief to dancers who prefer to cut ties with Déjà\\nVu. Because the Dancers can choose to receive compensation from the cash pool regardless of\\nwhether they continued working at Déjà Vu, the Settlement Agreement cannot be understood to\\nrequire the Dancers to “reengag[e] in the same . . . activity that they believe led to their injury.”\\nId. at 757.\\n\\n When compared against the risks involved in litigating or arbitrating the Dancers’ claims,\\nthe value of the Settlement Agreement is significant. The injunctive relief mandates extensive\\nchanges to Déjà Vu’s business practices, and both the $1 million cash pool and the $4.5 million\\nsecondary pool are available to provide financial compensation to the Dancers in the form that\\nbest suits each individual dancer’s circumstances. We find that the district court did not abuse its\\ndiscretion in finding that the tangible benefits afforded to class members as a result of the\\nSettlement Agreement outweigh the value of the volatile claims that the Dancers released.\\n\\n 2. Remaining UAW Factors\\n\\n UAW also instructs courts to consider the risk of fraud or collusion. UAW, 497 F.3d at\\n631. The Objectors argue that the Settlement Agreement promotes collusion between the\\nDancers’ counsel and Déjà Vu’s counsel. Specifically, the Objectors take issue with the\\nSettlement Agreement’s “clear-sailing clause,” which provides that Déjà Vu “agree[s] not to\\nobject to a request” for up to $900,000 of direct attorneys’ fees and up to $300,000 of indirect\\nattorneys’ fees. (Settlement Agreement, R. 41-2, PageID 1173.) The Objectors argue that the\\n“attorneys’ fees sought by Class Counsel . . . dwarf[] the recovery of the Class.” (C.T. Br. 29.)\\nThe district court correctly rejected this argument. “Not every ‘clear sailing provision’\\ndemonstrates collusion.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 426 (6th Cir. 2012).\\nAdditionally, the fee award is not disproportionate to the recovery of the class. On one hand,\\nassuming that the Dancers fully deplete the secondary pool and class counsel receive the full\\namount of indirect fees, the attorneys’ fees would represent only 23% of the total settlement\\naward, even without including the value of injunctive relief. On the other hand, assuming that\\nnot a single dancer opts into the secondary pool, the $900,000 in attorneys’ fees would represent\\nonly 20% of the combined value of the cash pool and the district court’s approximation of the\\nvalue of the injunctive relief. It is not abnormal for negotiated attorneys’ fee awards to comprise\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 12\\n\\n\\n20% to 30% of the total award. See Waters v. Intern. Precious Metal Corp., 190 F.3d 1291,\\n1294 (11th Cir. 1999); Gooch, 672 F.3d at 426. Accordingly, the district court did not abuse its\\ndiscretion in finding that this factor weighs in favor of approval.\\n\\n Another UAW factor is the complexity, expense, and likely duration of the litigation.\\n497 F.3d at 631. The district court noted that “[t]his case presents complex legal issues because\\nit combines a Rule 23 class action with a FLSA collective action.” (Op. & Order, R. 77, PageID\\n4214.) Indeed, the Cin-Lan settlement illustrates the complexity of an FLSA class action claim\\ninvolving exotic dancers. There, plaintiffs litigated against defendants for three years and\\nengaged in extensive discovery and motion practice before entering into a final settlement\\nagreement. In contrast, the Settlement Agreement in this case conserves judicial resources by\\nconsolidating eight other lawsuits and administrative proceedings into the present Settlement\\nAgreement. The district court did not abuse its discretion in finding that this factor cuts in favor\\nof approving the Settlement Agreement.\\n\\n The next UAW factor is the amount of discovery engaged in by the parties as a factor in\\napproving settlements. 497 F.3d at 631. The Objectors argue that the district court abused its\\ndiscretion by approving the settlement without requiring the parties to engage in discovery,\\nwhich led to class counsel undervaluing the class’s claims and creating a financial windfall for\\nclass counsel. But courts have held that settlements are permissible where, “notwithstanding the\\nstatus of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the\\nfacts of their case.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir.\\n1981). The Cin-Lan case, which involved extensive discovery, provided the Dancers’ counsel\\nwith a vehicle to obtain the necessary information. This case involves the same counsel\\nlitigating similar claims on behalf of many of the same dancers against one of the same\\ndefendants. As the district court found, the parties in this case “made a sufficient showing of\\ninformal discovery based on their efforts in Cin-Lan, when [the same class counsel] served\\n13 interrogatories and 87 requests for production on each of the three [D]efendants, took\\n13 depositions of Defendants’ officers and managers, and filed numerous subpoenas on third\\nparties.” (Op. & Order, R. 77, PageID 4214.) Because of the substantial overlap between the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 13\\n\\n\\ntwo cases, the district court did not abuse its discretion in finding that the parties’ informal\\ndiscovery from Cin-Lan was sufficient.\\n\\n Two UAW factors focus on the class’s response to the proposed settlement: courts are\\nrequired to consider the opinions of class counsel and class representatives, as well as the\\nreactions of absent class members. 497 F.3d at 631. Jane Doe 1, the named representative, is\\nnot among the Objectors in this case—she has a favorable view of the settlement. And both Déjà\\nVu and the Dancers agreed that the counsel representing both parties had extensive experience,\\nwhich supports the district court’s finding that counsels’ positive outlook toward the fairness of\\nthe settlement weighed in favor of approving the Settlement Agreement. The settlement\\nagreement has also received a relatively positive response from absent class members. The class\\nconsists of 28,177 current and former dancers. Of those, 24,575 notices were delivered, which\\namounts to nearly 88% of the class. And of the dancers that received notices, by the time the\\ncourt held its fairness hearing, 19% of the class—or 4,623 dancers—opted-in to the settlement,\\nwhich exceeded the parties’ expected 15% opt-in rate. In contrast, only 66 dancers opted-out of\\nthe settlement, or 0.2%, and there were only six objectors to the settlement, or 0.02%. The\\nObjectors’ only challenge to these two factors is their contention that the district court afforded\\ntoo much deference to counsel. But the court expressly acknowledged that counsel’s opinions\\nwere “by no means dispositive.” (Op. & Order, R. 77, PageID 4215.) Thus, the district court did\\nnot abuse its discretion in finding that the level of support and participation from the class\\nsupported approval of the Settlement Agreement.\\n\\n The final UAW factor is the public interest. 497 F.3d at 631. Courts have held that “there\\nis a strong public interest in encouraging settlement of complex litigation and class action suits\\nbecause they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial\\nresources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003). At the\\nsame time, courts have also found that the enforcing the FLSA furthers an important interest in\\n“encouraging employees and others to ensure that employers comply with laws governing\\nemployment.” Levan v. Sears, Roebuck & Co., 984 F. Supp. 2d 855, 871 (E.D. Tenn. 2013).\\nThe district court concluded that this Settlement Agreement achieves both purposes: the\\nsettlement “puts an end to ‘potentially long and protracted litigation,’” and it also “mandates\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 14\\n\\n\\nlong-term structural changes to Defendants’ business practices designed to ensure workers are\\naccurately classified and employees receive appropriate wages and legal protections.” (Op.\\n& Order, R. 77, PageID 4216.) We agree. Therefore, the district court did not abuse its\\ndiscretion in finding that this factor weighed in favor of approving the Settlement Agreement as\\nwell.\\n\\n B. Rule 23 Procedural Requirements\\n\\n The Objectors also argue that the settlement violates the procedural requirements of\\nFederal Rule of Civil Procedure 23, because the class release is impermissibly broad and the\\nclass notice failed to adequately apprise the class members of their rights. We address each\\nargument in turn.\\n\\n 1. Breadth of Class Release\\n\\n The Settlement Agreement defines the “Settlement Class Members’ Released Claims” as\\n“all Claims asserted in the Action, or to be asserted in the Action by way of the amendment\\ncontemplated in this Agreement, and any and all Claims of any conceivable kind or nature\\nwhatsoever that are based on such pleadings or that are reasonably related thereto (except only\\nfor those under the FLSA).” (Settlement Agreement, R. 41-2, PageID 1160.) The Settlement\\nAgreement goes on to list ten categories of state law claims it specifically includes within this\\ndefinition, including employment, wage, and labor claims against Déjà Vu. The Objectors claim\\nthat a class release of this breadth cannot satisfy the “identical factual predicate doctrine”\\noutlined by the Second Circuit in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., which limits class\\nreleases to “claims that share the same integral facts as settled claims, provided that the released\\nclaims are adequately represented prior to settlement.” 396 F.3d 96, 106 (2d Cir. 2005). As with\\nthe remainder of the district court’s approval of the Settlement Agreement, we review the district\\ncourt’s determination on this issue for abuse of discretion. Moulton v. U.S. Steel Corp., 581 F.3d\\n344, 349 (6th Cir. 2009).\\n\\n This court has held that “the question is not whether the definition of the claim in the\\ncomplaint and the definition of the claim in the release overlap perfectly; it is whether the\\nreleased claims share a ‘factual predicate’ with the claims pled in the complaint.” Moulton,\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 15\\n\\n\\n581 F.3d at 349 (internal citations omitted). The claims released in the Settlement Agreement\\nshare that factual predicate, as the release specifically cabins the categories of relinquished\\nclaims to those “based upon” or “reasonably related” to the pleadings and claims asserted in the\\nSettlement Agreement. Therefore, the Objectors’ argument that the release covers claims\\n“completely unrelated to the lawsuit” lacks merit. (Cabrera Br. 54 (emphasis in original).)\\n\\n 2. Adequacy of Notice to Class Members\\n\\n Finally, the Objectors claim that the class notice was inadequate to apprise the class\\nmembers of their rights. Rule 23(c)(2)(b) requires the class to provide notice of the nature of the\\naction; the definition of the class certified; the class claims, issues, or defenses; information on\\nhow a class member can enter an appearance with their lawyer; information on how class\\nmembers can opt into or out of the settlement; and the binding effect of the settlement\\nagreement. Additionally, we have held that “due process requires that notice to the class be\\nreasonably calculated, under all the circumstances, to apprise interested parties of the pendency\\nof the action and afford them an opportunity to present their objections.” Vassalle v. Midland\\nFunding LLC, 708 F.3d 747, 759 (6th Cir. 2013). We review the adequacy of class notice de\\nnovo. Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).\\n\\n The notice that the Dancers provided to the class covered all of the bases set out in Rule\\n23(c)(2)(b). Still, the Objectors advance several arguments for why the notice failed to comport\\nwith the due process requirements outlined above.\\n\\n First, the Objectors contend that the notice mischaracterized the scope of the release.\\nThis argument fails. The notice stated that, by staying in the class, a dancer would “give up [the]\\nright to sue Deja Vu . . . on any state law claims later,” and that all class members “will have\\nreleased all Defendants, including all of the Deja Vu–Affiliated Nightclubs, from any further\\nclaims related to the matters raised in this lawsuit” such that class members “cannot ever sue\\nany of the Defendants about these issues based upon conduct that occurred prior to the Effective\\nDate of the settlement.” (Notice of Settlement, R. 37-1, PageID 1036, 1041–42.) The class\\nnotice accurately captured the scope of the release. See supra at 14.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 16\\n\\n\\n Second, the Objectors argue that the notice provided was unclear with respect to how the\\nsettlement would be split among the Dancers. But the Objectors cite no authority that requires a\\nnotice to state how much money each class member would receive, nor do they explain how the\\nnotice could have accurately stated the amount each dancer was eligible to receive from the cash\\npool before knowing the total number of dancers who opted to participate in the cash pool. The\\nnotice appropriately details the two forms of monetary relief, including the total cash pool\\namount and the structure and value of the secondary pool credits, which is reasonable under the\\ncircumstances.\\n\\n Third, the Objectors claim that the notice was deficient because it failed to list “the 10\\nprior-filed class and collective actions against some of these clubs in which class members could\\nhave pursued their claims as an alternative to joining this action.” (Cabrera Br. 55.) For support,\\nthe Objectors point to Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a case in\\nwhich the Objectors claim that the Seventh Circuit reversed the approval of a settlement because\\nof a failure to inform class members of a pending state case. But the Objectors oversell the\\nholding in Mirfasihi, which was rooted in the fact that many class members could have recovered\\nin the pending cases but were entitled to absolutely no recovery in the action in question. See id.\\nat 785. The Seventh Circuit expressly stated that, in other contexts, notice of pending suits is not\\na “requirement[] of an acceptable settlement.” Id. Here, where the Settlement Agreement\\nprovides some monetary relief to every class member and compels Déjà Vu to change its\\nbusiness practices through injunctive relief, failure to provide notice of other pending suits does\\nnot render the class notice unreasonable. For those reasons, the notice comports with the\\nrequirements of due process.\\n\\n III.\\n\\n We affirm the judgment of the district court.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 17\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2481,"cells":{"id":{"kind":"number","value":4625642,"string":"4,625,642"},"name":{"kind":"string","value":"Howard HOLT ; Martin Erskine, Plaintiffs-Appellants, v. CITY OF BATTLE CREEK, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Howard Holt v. City of Battle Creek"},"decision_date":{"kind":"string","value":"2019-06-03"},"docket_number":{"kind":"string","value":"18-1981"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Guy, Clay, Griffin\", \"parties\": \"\", \"opinions\": [{\"author\": \"findings, this Court gives due regard to the district court's opportunity to judge the credibility of\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0114p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n HOWARD HOLT; MARTIN ERSKINE, ┐\\n Plaintiffs-Appellants, │\\n │\\n > No. 18-1981\\n v. │\\n │\\n │\\n CITY OF BATTLE CREEK, │\\n Defendant-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Western District of Michigan at Grand Rapids.\\n No. 1:15-cv-00931—Janet T. Neff, District Judge.\\n\\n Argued: May 3, 2019\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: GUY, CLAY, and GRIFFIN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Robert Anthony Alvarez, Agustin Henriquez, Jr., AVANTI LAW GROUP, PLLC,\\nWyoming, Michigan, for Appellants. Gregory N. Longworth, CLARK HILL PLC, Grand\\nRapids, Michigan, for Appellee. ON BRIEF: Robert Anthony Alvarez, AVANTI LAW\\nGROUP, PLLC, Wyoming, Michigan, for Appellants. Gregory N. Longworth, CLARK HILL\\nPLC, Grand Rapids, Michigan, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n CLAY, Circuit Judge. Plaintiffs Howard Holt and Martin Erskine appeal from the\\njudgment entered in favor of Defendant City of Battle Creek on Plaintiffs’ claim that Defendant\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 2\\n\\n\\nviolated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., by failing to pay\\nPlaintiffs overtime wages. For the reasons set forth below, we AFFIRM the decision of the\\ndistrict court.\\n\\n BACKGROUND\\n\\n Factual History\\n\\n Plaintiffs Holt and Erskine each served as a battalion chief in Defendant’s fire\\ndepartment. Holt was the “suppression” battalion chief from 2007 until his retirement in 2015;\\nErskine became the “administrative” battalion chief in 2012 and has not retired. Battalion chiefs\\nare second in command in the fire department hierarchy, behind the fire chief but ahead of other\\nemployees. Plaintiffs served under three different fire chiefs: Chief Larry Hausman from 1997\\nthrough April 2013, Chief Jackie Hampton from April 2013 through January 2014, and Chief\\nArthur David Schmaltz from February 2014 through the rest of the time period at issue.\\n\\nI. Battalion Chief Job Responsibilities\\n\\n The City of Battle Creek’s job description for battalion chiefs included the following\\nsummary of the position’s responsibilities:\\n\\n Provides supervision to fire fighting personnel; Implements the incident command\\n system and serves as incident commander at all incidents; Accepts responsibility\\n for assigned administrative and fire prevention functions; Functions as the chief\\n administrative officer of the department in absence of the Fire Chief and Deputy\\n Fire Chief; Actively supports the decisions and policies of the City and fire\\n administration and performs related work as required.\\n\\n(Appellee Appendix, Joint Exhibit 5, A32.) The document also described essential job functions\\nof the battalion chiefs, which included “[p]repar[ing] and administer[ing] disciplinary actions\\nagainst subordinate personnel in the form of coaching and counseling, oral and written\\nreprimands;” “[c]onduct[ing] evaluations of immediate subordinate personnel, review[ing]\\nevaluations of other personnel assigned to shift, and provid[ing] feedback to subordinate\\npersonnel;” “[i]nspect[ing] fire stations, apparatus, equipment, and personnel to ensure\\noperational readiness on a daily basis;” and “[p]lan[ning] and coordinat[ing] daily activities of\\nshift personnel in concert with training, pre-plan inspections, maintenance, and public activities\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 3\\n\\n\\nsuch as fire prevention.” (Id.) While Plaintiffs did not have direct authority to make hiring and\\nfiring decisions, they conducted performance evaluations that were used in the promotional\\nprocess and were otherwise involved in advancement decisions.\\n\\n An internal department memo described the different areas of responsibility of the\\nadministrative and suppression battalion chiefs. Erskine’s responsibilities as administrative\\nbattalion chief included training fire department personnel, ensuring road safety, creating a “plan\\nof the day” and “plan of the week” for the officers and firefighters, and approving vacation\\nrequests. As suppression battalion chief, Holt’s responsibilities listed in the memo included\\nserving as the immediate supervisor for station officers, maintaining fire department standards,\\nhandling facility issues, and overseeing uniforms and supplies.\\n\\n Chief Hausman testified that the “primary responsibility” of the battalion chiefs and fire\\nchief was “not physical work, it was . . . management and leadership,” and that the “majority” of\\ntheir jobs consisted of “administrative functions, you know, management.” (R. 122, Hausman\\nDeposition, PageID # 1012.) When called to a fire, a battalion chief’s role as incident\\ncommander, according to Chief Hausman, was to remain in the vehicle and “manage, lead, and\\ndirect” the fire suppression efforts by “monitoring the situation[ and] taking input from the\\ncompany officers.” (Id. at PageID # 1013.) Chiefs Hausman and Schmaltz each testified that\\nthey gave particular weight to Holt’s recommendations regarding discipline; Schmaltz referred to\\nthe battalion chiefs as his “senior staff.” (R. 128, Transcript, PageID # 1077.) Holt and Erskine\\neach testified that while they had the power to issue verbal and written reprimands, the ultimate\\ndecision as to discipline rested with the fire chief, and the fire chief occasionally overrode\\nPlaintiffs’ disciplinary recommendations.\\n\\nII. Standby Duty\\n\\n As battalion chiefs, Plaintiffs were required to periodically serve on “standby” duty.\\nStandby duty typically rotated between Holt, Erskine, and the fire chief, with the individual\\nserving on standby required to be “on call” from 5:00 pm until 8:00 am the following morning\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 4\\n\\n\\nfor seven days.1 Plaintiffs received 1.5 hours of pay for each day of standby duty, in addition to\\novertime pay for hours worked if they were called back to active duty while on standby. The\\nindividual on standby duty was required to monitor a pager and a radio, answer phone calls if\\nneeded, and help handle problems if they arose.\\n\\n Plaintiffs were occasionally required to respond to the scene of a fire while on standby\\nduty. Therefore, Plaintiffs’ activities were somewhat restricted during the weeks they were on\\nstandby. The officer on standby duty could not drink alcohol or go out of town. Plaintiffs both\\ntestified that they stopped playing organized sports while on standby, out of concern that they\\nwould not hear the pager if it went off while they were playing. Holt testified that when he and\\nhis wife went out to eat while he was on standby, they had to take two cars so that she would not\\nbe left stranded at the restaurant if he had to go to the scene of a fire; Holt’s wife testified that\\n“when he was on call, we were pretty much prisoners right there in the house.” (R. 128,\\nTranscript, PageID # 1104.) Mrs. Holt also testified that standby duty disrupted their sleep,\\nbecause the pager would occasionally go off during the night if an “all stations” fire occurred.\\n\\n Chief Hausman’s testimony differed from Plaintiffs’ regarding the restrictiveness of\\nstandby duty. While Holt and Erskine testified that they continually monitored their radios\\nduring standby duty, Hausman testified that there was “no expectation [that] the radio [would be]\\nmonitored 24/7” during standby, because the pager provided sufficient notice of an alarm.\\n(R. 122, Hausman Deposition, PageID # 1014.) Chief Schmaltz testified that he left his radio in\\nhis car when he was at home on standby duty for the same reason. Hausman also testified that\\nother battalion chiefs had been able to engage in activities such as golfing and working on a\\nhorse farm while on standby. Hausman stated that standby duty was not so onerous as to prevent\\nhim from effectively using his time for personal pursuits.\\n\\n Procedural History\\n\\n On September 12, 2015, Plaintiffs filed a complaint in federal court alleging that the City\\nof Battle Creek had violated the FLSA by failing to pay overtime for hours worked in excess of\\n\\n 1In 2015, the City of Battle Creek transitioned from the week-long standby system to 24-hour shift\\nrotations, with battalion chiefs now paid for every hour they are on call.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 5\\n\\n\\n40 per week due to standby duty. Defendant filed a motion to dismiss in favor of arbitration on\\nJuly 20, 2016 and a motion for summary judgment on November 13, 2017; the district court\\ndenied both motions. After a bench trial, the district court ruled that Plaintiffs were exempt from\\nthe FLSA’s overtime pay requirement under both the executive and the administrative\\nexemptions. The district court also held that, even if Plaintiffs “were within the classes of\\nemployees subject to FLSA coverage, their duties during standby time were not so onerous as to\\nprevent them from effectively using the time for personal pursuits.” (R. 129, Transcript, PageID\\n# 1333.) This appeal followed.\\n\\n DISCUSSION\\n\\nI. Applicability of the “Fair Reading” Standard\\n\\n Standard of Review\\n\\n “After a bench trial, we review the district court’s factual findings for clear error and its\\nconclusions of law de novo.” Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 643–44 (6th Cir.\\n2013). Because this issue involves a legal question, we review it de novo.\\n\\n Analysis\\n\\n The FLSA requires employers to pay overtime compensation to employees who work\\nmore than 40 hours a week. The FLSA exempts certain classes of employees from the overtime\\npay requirements. 29 U.S.C. § 213. Until recently, courts “narrowly construed [the exemptions]\\nagainst the employers seeking to assert them.” See, e.g., Thomas v. Speedway SuperAmerica,\\nLLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,\\n392 (1960)). In the 2018 case Encino Motorcars, LLC v. Navarro, however, the Supreme Court\\nheld that courts should apply a “fair reading” to the exemptions. 138 S. Ct. 1134, 1142 (2018).\\nThe district court in this case followed the Supreme Court’s instruction to give the exemptions a\\nfair reading, and under that standard, it determined that Plaintiffs were exempt from the FLSA’s\\novertime requirement under the executive and administrative exemptions.\\n\\n Plaintiffs argue that the district court erred in applying the fair reading standard to the\\nFLSA exemptions. According to Plaintiffs, the Supreme Court’s language in Encino endorsing a\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 6\\n\\n\\n“fair” instead of a “narrow” construction of the FLSA exemptions is dicta as applied to anything\\nother than the salesman exemption that was under consideration in Encino. Under Plaintiffs’\\ntheory, all exemptions other than the salesman exemption are still subject to a narrow\\ninterpretation.\\n\\n Plaintiffs’ theory is incorrect. Even if the Supreme Court’s statement in Encino was dicta\\noutside of the context of the salesman exemption, “[l]ower courts are obligated to follow\\nSupreme Court dicta, particularly where there is not substantial reason for disregarding it, such\\nas age or subsequent statements undermining its rationale.” In re Baker, 791 F.3d 677, 682 (6th\\nCir. 2015) (alteration in original) (quoting ACLU of Ky. v. McCreary Cty., Ky., 607 F.3d 439,\\n447–48 (6th Cir. 2010)). Encino is a recent Supreme Court decision, and there have been no\\nintervening Supreme Court cases casting doubt on its analysis. Moreover, this Court and others\\nhave applied Encino’s fair reading standard outside of the salesman exemption. See Mosquera v.\\nMTI Retreading Co., 745 F. App’x 568, 570–71 (6th Cir. 2018) (professional exemption); Flood\\nv. Just Energy Mktg. Corp., 904 F.3d 219, 228 (2d Cir. 2018) (outside salesman exemption);\\nCarley v. Crest Pumping Techs., LLC, 890 F.3d 575, 579 (5th Cir. 2018) (Motor Carrier Act\\nexemption). The district court was bound by the Supreme Court’s pronouncement in Encino,\\nand it did not err by applying the fair reading standard in this case.\\n\\nII. Applicability of the Exemptions\\n\\n Standard of Review\\n\\n As explained above, we review the district court’s factual findings for clear error and\\nconclusions of law de novo. Fed. R. Civ. P. 52(a); Foster, 710 F.3d at 644. This issue involves\\nthe district court’s factual findings, so clear error review applies. Icicle Seafoods, Inc. v.\\nWorthington, 475 U.S. 709, 713 (1986) (“[T]he facts necessary to a proper determination of the\\nlegal question whether an exemption to the FLSA applies in a particular case should be reviewed\\nby the courts of appeals [for clear error] . . . .”). “In [its] review of the district court’s factual\\nfindings, this Court gives due regard to the district court’s opportunity to judge the credibility of\\nthe witnesses.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 597 (6th Cir. 2001).\\n“Clear error will be found only when the reviewing court is left with the definite and firm\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 7\\n\\n\\nconviction that a mistake has been committed.” Max Trucking, LLC v. Liberty Mut. Ins. Corp.,\\n802 F.3d 793, 808 (6th Cir. 2015). As the Supreme Court has explained:\\n\\n If the district court’s account of the evidence is plausible in light of the record\\n viewed in its entirety, the court of appeals may not reverse it even though\\n convinced that had it been sitting as the trier of fact, it would have weighed the\\n evidence differently. Where there are two permissible views of the evidence, the\\n factfinder’s choice between them cannot be clearly erroneous.\\n\\nAnderson v. Bessemer City, 470 U.S. 564, 573–74 (1985). Therefore, “when a trial judge’s\\nfinding is based on his decision to credit the testimony of one of two or more witnesses, each of\\nwhom has told a coherent and facially plausible story that is not contradicted by extrinsic\\nevidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id. at\\n575.\\n\\n Analysis\\n\\n The district court found that Plaintiffs were exempt from the FLSA’s overtime pay\\nrequirements under both the executive and the administrative exemptions. Plaintiffs argue this\\nwas clear error.2 For the reasons set forth below, the district court did not clearly err in finding\\nPlaintiffs exempt from the FLSA’s overtime pay requirements.\\n\\n The executive exemption of the FLSA has four elements. 29 C.F.R. § 541.100. Only the\\nsecond and fourth elements are at issue in this case. The second element states that an executive\\nemployee is one “[w]hose primary duty is management of the enterprise in which the employee\\nis employed or of a customarily recognized department or subdivision thereof.” 29 C.F.R.\\n§ 541.100(a)(2). The fourth element states that an executive employee is one “[w]ho has the\\nauthority to hire or fire other employees or whose suggestions and recommendations as to the\\nhiring, firing, advancement, promotion or any other change of status of other employees are\\ngiven particular weight.” 29 C.F.R. § 541.100(a)(4).\\n\\n 2Plaintiffs also argue that the district court erred by not “methodically dissecting and analyzing each\\nseparate workweek” to determine whether the exemptions applied at any given time. (Plaintiffs’ Br. at 34.)\\nHowever, the section of the FLSA regulations that Plaintiffs cite in support of that proposition is not applicable to\\nthis case, because it only relates to the exemptions applicable to agricultural workers. 29 C.F.R. § 780.11. The\\nregulations applicable to the executive and administrative exemptions, in contrast, state that an employee may be\\nsubject to the exemptions even if part of that employee’s time is spent performing nonexempt work. 29 C.F.R.\\n§ 541.700.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 8\\n\\n\\n A. Primary Duty\\n\\n The district court found that Plaintiffs’ primary duty was managerial in nature, satisfying\\nthe second element of the executive exemption. The district court focused on the fact that\\nPlaintiffs “were required to directly supervise lower-ranking officers and personnel, evaluate\\npersonnel, administer and enforce department policy, and coordinate the day-to-day operations\\nof the department.” (R. 129, Transcript, PageID # 1321.) The district court pointed to several\\npieces of evidence and testimony that supported this finding. It noted that testimony established\\nthat the battalion chiefs were expected to “take charge and operate as the incident commanders at\\nthe scene of a fire.” (Id. at PageID # 1322 (internal quotations omitted).) Additionally, the\\ndistrict court stated:\\n\\n Chief Schmaltz and Chief [Hausman] both testified that plaintiff Holt was “in\\n charge” of all suppression personnel and plaintiff Erskine was “in charge” or\\n “oversaw” the training division. Approximately 27 lieutenants and captains\\n directly reported to plaintiff Holt[,] who monitored their adherence to standards.\\n Moreover, Chief [Hausman] testified that if any fire fighter “had a problem[,]” he\\n or she would take it to plaintiff Holt.\\n\\n(Id. at PageID # 1322–23.) Finally, the district court recognized that even Plaintiffs had referred\\nto themselves as “management” in a June 4, 2014 letter to Chief Schmaltz.\\n\\n This evidence supports the district court’s conclusion that Plaintiffs’ primary duty was\\nmanagement of the City of Battle Creek fire department. Plaintiffs argue that the district court’s\\nconclusion was clear error because Plaintiffs’ “actual[] job duties, not the ones described in their\\n[Standard Operating Procedures], were that of a regular rank and file firefighter, with [a] few\\nadded responsibilities for the sake of preserving order in chaos in a fire fight.” (Plaintiffs’ Reply\\nBr. at 7.) In essence, Plaintiffs argue that the district court should have weighed the evidence\\ndifferently to conclude that Plaintiffs’ primary duties were not managerial. This argument is\\nunpersuasive. Ample evidence supports the district court’s conclusion, so this Court cannot\\nsecond-guess the district court’s factual findings. See Anderson, 470 U.S. 573–74. The district\\ncourt did not commit clear error in concluding that Plaintiffs’ duties were primarily managerial.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 9\\n\\n\\n B. Recommendations Given Particular Weight\\n\\n The district court found that the fourth element of the executive exemption was also\\nsatisfied. While the district court recognized that Plaintiffs did not have independent authority to\\nhire, fire, or suspend fire fighters, it credited certain testimony as showing that Plaintiffs’\\n“suggestions and recommendations as to hiring, firing, advancement, promotion or any other\\nchange of status of other employees were given ‘particular weight.’” (R. 129, Transcript,\\nPageID # 1324–25.) The district court stated:\\n\\n Chief [Hausman] testified that plaintiff Holt was the person who was responsible\\n for oral and written disciplinary proceedings of the fire fighters, and that Holt\\n issued the “majority” of the discipline in the department. Chief [Hausman]\\n testified that he gave “a lot of weight” to plaintiff Holt’s recommendation, that he\\n did “not operate in a vacuum.” Chief [Hausman] also specifically testified that\\n plaintiff Erskine, the administrative battalion chief, was responsible for managing\\n vacation and “Kelly days” in the department.\\n\\n(Id.) The district court also pointed to Chief Schmaltz’s testimony that he “specifically requested\\n[P]laintiffs’ input concerning personnel decisions” and the testimony of the former employee\\nrelations director for the City of Battle Creek that Plaintiffs played a “significant role” in hiring\\ndecisions. (Id. at PageID # 1325.)\\n\\n Plaintiffs again argue that the district court’s conclusion was erroneous. Plaintiffs point\\nto specific pieces of evidence purportedly showing that they did not have the requisite authority\\nregarding personnel decisions under 29 C.F.R. § 541.100(a)(4). Specifically, Plaintiffs highlight\\nparts of their testimony in which they described times the fire chiefs overruled Plaintiffs’\\ndisciplinary recommendations. However, this element of the executive exemption does not\\nrequire courts to ask whether an employee’s recommendations as to personnel decisions were\\naccepted every single time—instead, it presents the question of whether those recommendations\\nwere given “particular weight,” which is precisely what the district court found. This argument\\npresents yet another example of the district court making a reasonable choice between two\\npermissible views of the evidence. See Anderson, 470 U.S. 573–74. The district court cited\\nsufficient evidence to support its finding that Plaintiffs’ recommendations were given particular\\nweight. The district court did not commit clear error in reaching that conclusion.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 10\\n\\n\\n Our determination that the district court did not commit clear error in finding Plaintiffs\\nsubject to the executive exemption is sufficient to uphold the district court’s denial of Plaintiffs’\\nclaim for overtime compensation under the FLSA. Therefore, we need not address the district\\ncourt’s additional conclusions that Plaintiffs were also subject to the FLSA’s administrative\\nexemption and that, even if the exemptions did not apply, standby time was not so onerous as to\\nbe compensable under the FLSA.\\n\\n CONCLUSION\\n\\n The district court did not commit clear error in holding that Plaintiffs were subject to the\\nexecutive exemption under the FLSA. We therefore AFFIRM the decision of the district court.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402895/\", \"author_raw\": \"findings, this Court gives due regard to the district court's opportunity to judge the credibility of\"}]}"},"judge1":{"kind":"string","value":"GUY"},"judge2":{"kind":"string","value":"CLAY"},"judge3":{"kind":"string","value":"GRIFFIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625642/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Howard HOLT ; Martin Erskine, Plaintiffs-Appellants, v. CITY OF BATTLE CREEK, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0114p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n HOWARD HOLT; MARTIN ERSKINE, ┐\n Plaintiffs-Appellants, │\n │\n > No. 18-1981\n v. │\n │\n │\n CITY OF BATTLE CREEK, │\n Defendant-Appellee. │\n ┘\n\n Appeal from the United States District Court\n for the Western District of Michigan at Grand Rapids.\n No. 1:15-cv-00931—Janet T. Neff, District Judge.\n\n Argued: May 3, 2019\n\n Decided and Filed: June 3, 2019\n\n Before: GUY, CLAY, and GRIFFIN, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Robert Anthony Alvarez, Agustin Henriquez, Jr., AVANTI LAW GROUP, PLLC,\nWyoming, Michigan, for Appellants. Gregory N. Longworth, CLARK HILL PLC, Grand\nRapids, Michigan, for Appellee. ON BRIEF: Robert Anthony Alvarez, AVANTI LAW\nGROUP, PLLC, Wyoming, Michigan, for Appellants. Gregory N. Longworth, CLARK HILL\nPLC, Grand Rapids, Michigan, for Appellee.\n _________________\n\n OPINION\n _________________\n\n CLAY, Circuit Judge. Plaintiffs Howard Holt and Martin Erskine appeal from the\njudgment entered in favor of Defendant City of Battle Creek on Plaintiffs’ claim that Defendant\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 2\n\n\nviolated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., by failing to pay\nPlaintiffs overtime wages. For the reasons set forth below, we AFFIRM the decision of the\ndistrict court.\n\n BACKGROUND\n\n Factual History\n\n Plaintiffs Holt and Erskine each served as a battalion chief in Defendant’s fire\ndepartment. Holt was the “suppression” battalion chief from 2007 until his retirement in 2015;\nErskine became the “administrative” battalion chief in 2012 and has not retired. Battalion chiefs\nare second in command in the fire department hierarchy, behind the fire chief but ahead of other\nemployees. Plaintiffs served under three different fire chiefs: Chief Larry Hausman from 1997\nthrough April 2013, Chief Jackie Hampton from April 2013 through January 2014, and Chief\nArthur David Schmaltz from February 2014 through the rest of the time period at issue.\n\nI. Battalion Chief Job Responsibilities\n\n The City of Battle Creek’s job description for battalion chiefs included the following\nsummary of the position’s responsibilities:\n\n Provides supervision to fire fighting personnel; Implements the incident command\n system and serves as incident commander at all incidents; Accepts responsibility\n for assigned administrative and fire prevention functions; Functions as the chief\n administrative officer of the department in absence of the Fire Chief and Deputy\n Fire Chief; Actively supports the decisions and policies of the City and fire\n administration and performs related work as required.\n\n(Appellee Appendix, Joint Exhibit 5, A32.) The document also described essential job functions\nof the battalion chiefs, which included “[p]repar[ing] and administer[ing] disciplinary actions\nagainst subordinate personnel in the form of coaching and counseling, oral and written\nreprimands;” “[c]onduct[ing] evaluations of immediate subordinate personnel, review[ing]\nevaluations of other personnel assigned to shift, and provid[ing] feedback to subordinate\npersonnel;” “[i]nspect[ing] fire stations, apparatus, equipment, and personnel to ensure\noperational readiness on a daily basis;” and “[p]lan[ning] and coordinat[ing] daily activities of\nshift personnel in concert with training, pre-plan inspections, maintenance, and public activities\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 3\n\n\nsuch as fire prevention.” (Id.) While Plaintiffs did not have direct authority to make hiring and\nfiring decisions, they conducted performance evaluations that were used in the promotional\nprocess and were otherwise involved in advancement decisions.\n\n An internal department memo described the different areas of responsibility of the\nadministrative and suppression battalion chiefs. Erskine’s responsibilities as administrative\nbattalion chief included training fire department personnel, ensuring road safety, creating a “plan\nof the day” and “plan of the week” for the officers and firefighters, and approving vacation\nrequests. As suppression battalion chief, Holt’s responsibilities listed in the memo included\nserving as the immediate supervisor for station officers, maintaining fire department standards,\nhandling facility issues, and overseeing uniforms and supplies.\n\n Chief Hausman testified that the “primary responsibility” of the battalion chiefs and fire\nchief was “not physical work, it was . . . management and leadership,” and that the “majority” of\ntheir jobs consisted of “administrative functions, you know, management.” (R. 122, Hausman\nDeposition, PageID # 1012.) When called to a fire, a battalion chief’s role as incident\ncommander, according to Chief Hausman, was to remain in the vehicle and “manage, lead, and\ndirect” the fire suppression efforts by “monitoring the situation[ and] taking input from the\ncompany officers.” (Id. at PageID # 1013.) Chiefs Hausman and Schmaltz each testified that\nthey gave particular weight to Holt’s recommendations regarding discipline; Schmaltz referred to\nthe battalion chiefs as his “senior staff.” (R. 128, Transcript, PageID # 1077.) Holt and Erskine\neach testified that while they had the power to issue verbal and written reprimands, the ultimate\ndecision as to discipline rested with the fire chief, and the fire chief occasionally overrode\nPlaintiffs’ disciplinary recommendations.\n\nII. Standby Duty\n\n As battalion chiefs, Plaintiffs were required to periodically serve on “standby” duty.\nStandby duty typically rotated between Holt, Erskine, and the fire chief, with the individual\nserving on standby required to be “on call” from 5:00 pm until 8:00 am the following morning\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 4\n\n\nfor seven days.1 Plaintiffs received 1.5 hours of pay for each day of standby duty, in addition to\novertime pay for hours worked if they were called back to active duty while on standby. The\nindividual on standby duty was required to monitor a pager and a radio, answer phone calls if\nneeded, and help handle problems if they arose.\n\n Plaintiffs were occasionally required to respond to the scene of a fire while on standby\nduty. Therefore, Plaintiffs’ activities were somewhat restricted during the weeks they were on\nstandby. The officer on standby duty could not drink alcohol or go out of town. Plaintiffs both\ntestified that they stopped playing organized sports while on standby, out of concern that they\nwould not hear the pager if it went off while they were playing. Holt testified that when he and\nhis wife went out to eat while he was on standby, they had to take two cars so that she would not\nbe left stranded at the restaurant if he had to go to the scene of a fire; Holt’s wife testified that\n“when he was on call, we were pretty much prisoners right there in the house.” (R. 128,\nTranscript, PageID # 1104.) Mrs. Holt also testified that standby duty disrupted their sleep,\nbecause the pager would occasionally go off during the night if an “all stations” fire occurred.\n\n Chief Hausman’s testimony differed from Plaintiffs’ regarding the restrictiveness of\nstandby duty. While Holt and Erskine testified that they continually monitored their radios\nduring standby duty, Hausman testified that there was “no expectation [that] the radio [would be]\nmonitored 24/7” during standby, because the pager provided sufficient notice of an alarm.\n(R. 122, Hausman Deposition, PageID # 1014.) Chief Schmaltz testified that he left his radio in\nhis car when he was at home on standby duty for the same reason. Hausman also testified that\nother battalion chiefs had been able to engage in activities such as golfing and working on a\nhorse farm while on standby. Hausman stated that standby duty was not so onerous as to prevent\nhim from effectively using his time for personal pursuits.\n\n Procedural History\n\n On September 12, 2015, Plaintiffs filed a complaint in federal court alleging that the City\nof Battle Creek had violated the FLSA by failing to pay overtime for hours worked in excess of\n\n 1In 2015, the City of Battle Creek transitioned from the week-long standby system to 24-hour shift\nrotations, with battalion chiefs now paid for every hour they are on call.\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 5\n\n\n40 per week due to standby duty. Defendant filed a motion to dismiss in favor of arbitration on\nJuly 20, 2016 and a motion for summary judgment on November 13, 2017; the district court\ndenied both motions. After a bench trial, the district court ruled that Plaintiffs were exempt from\nthe FLSA’s overtime pay requirement under both the executive and the administrative\nexemptions. The district court also held that, even if Plaintiffs “were within the classes of\nemployees subject to FLSA coverage, their duties during standby time were not so onerous as to\nprevent them from effectively using the time for personal pursuits.” (R. 129, Transcript, PageID\n# 1333.) This appeal followed.\n\n DISCUSSION\n\nI. Applicability of the “Fair Reading” Standard\n\n Standard of Review\n\n “After a bench trial, we review the district court’s factual findings for clear error and its\nconclusions of law de novo.” Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 643–44 (6th Cir.\n2013). Because this issue involves a legal question, we review it de novo.\n\n Analysis\n\n The FLSA requires employers to pay overtime compensation to employees who work\nmore than 40 hours a week. The FLSA exempts certain classes of employees from the overtime\npay requirements. 29 U.S.C. § 213. Until recently, courts “narrowly construed [the exemptions]\nagainst the employers seeking to assert them.” See, e.g., Thomas v. Speedway SuperAmerica,\nLLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,\n392 (1960)). In the 2018 case Encino Motorcars, LLC v. Navarro, however, the Supreme Court\nheld that courts should apply a “fair reading” to the exemptions. 138 S. Ct. 1134, 1142 (2018).\nThe district court in this case followed the Supreme Court’s instruction to give the exemptions a\nfair reading, and under that standard, it determined that Plaintiffs were exempt from the FLSA’s\novertime requirement under the executive and administrative exemptions.\n\n Plaintiffs argue that the district court erred in applying the fair reading standard to the\nFLSA exemptions. According to Plaintiffs, the Supreme Court’s language in Encino endorsing a\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 6\n\n\n“fair” instead of a “narrow” construction of the FLSA exemptions is dicta as applied to anything\nother than the salesman exemption that was under consideration in Encino. Under Plaintiffs’\ntheory, all exemptions other than the salesman exemption are still subject to a narrow\ninterpretation.\n\n Plaintiffs’ theory is incorrect. Even if the Supreme Court’s statement in Encino was dicta\noutside of the context of the salesman exemption, “[l]ower courts are obligated to follow\nSupreme Court dicta, particularly where there is not substantial reason for disregarding it, such\nas age or subsequent statements undermining its rationale.” In re Baker, 791 F.3d 677, 682 (6th\nCir. 2015) (alteration in original) (quoting ACLU of Ky. v. McCreary Cty., Ky., 607 F.3d 439,\n447–48 (6th Cir. 2010)). Encino is a recent Supreme Court decision, and there have been no\nintervening Supreme Court cases casting doubt on its analysis. Moreover, this Court and others\nhave applied Encino’s fair reading standard outside of the salesman exemption. See Mosquera v.\nMTI Retreading Co., 745 F. App’x 568, 570–71 (6th Cir. 2018) (professional exemption); Flood\nv. Just Energy Mktg. Corp., 904 F.3d 219, 228 (2d Cir. 2018) (outside salesman exemption);\nCarley v. Crest Pumping Techs., LLC, 890 F.3d 575, 579 (5th Cir. 2018) (Motor Carrier Act\nexemption). The district court was bound by the Supreme Court’s pronouncement in Encino,\nand it did not err by applying the fair reading standard in this case.\n\nII. Applicability of the Exemptions\n\n Standard of Review\n\n As explained above, we review the district court’s factual findings for clear error and\nconclusions of law de novo. Fed. R. Civ. P. 52(a); Foster, 710 F.3d at 644. This issue involves\nthe district court’s factual findings, so clear error review applies. Icicle Seafoods, Inc. v.\nWorthington, 475 U.S. 709, 713 (1986) (“[T]he facts necessary to a proper determination of the\nlegal question whether an exemption to the FLSA applies in a particular case should be reviewed\nby the courts of appeals [for clear error] . . . .”). “In [its] review of the district court’s factual\nfindings, this Court gives due regard to the district court’s opportunity to judge the credibility of\nthe witnesses.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 597 (6th Cir. 2001).\n“Clear error will be found only when the reviewing court is left with the definite and firm\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 7\n\n\nconviction that a mistake has been committed.” Max Trucking, LLC v. Liberty Mut. Ins. Corp.,\n802 F.3d 793, 808 (6th Cir. 2015). As the Supreme Court has explained:\n\n If the district court’s account of the evidence is plausible in light of the record\n viewed in its entirety, the court of appeals may not reverse it even though\n convinced that had it been sitting as the trier of fact, it would have weighed the\n evidence differently. Where there are two permissible views of the evidence, the\n factfinder’s choice between them cannot be clearly erroneous.\n\nAnderson v. Bessemer City, 470 U.S. 564, 573–74 (1985). Therefore, “when a trial judge’s\nfinding is based on his decision to credit the testimony of one of two or more witnesses, each of\nwhom has told a coherent and facially plausible story that is not contradicted by extrinsic\nevidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id. at\n575.\n\n Analysis\n\n The district court found that Plaintiffs were exempt from the FLSA’s overtime pay\nrequirements under both the executive and the administrative exemptions. Plaintiffs argue this\nwas clear error.2 For the reasons set forth below, the district court did not clearly err in finding\nPlaintiffs exempt from the FLSA’s overtime pay requirements.\n\n The executive exemption of the FLSA has four elements. 29 C.F.R. § 541.100. Only the\nsecond and fourth elements are at issue in this case. The second element states that an executive\nemployee is one “[w]hose primary duty is management of the enterprise in which the employee\nis employed or of a customarily recognized department or subdivision thereof.” 29 C.F.R.\n§ 541.100(a)(2). The fourth element states that an executive employee is one “[w]ho has the\nauthority to hire or fire other employees or whose suggestions and recommendations as to the\nhiring, firing, advancement, promotion or any other change of status of other employees are\ngiven particular weight.” 29 C.F.R. § 541.100(a)(4).\n\n 2Plaintiffs also argue that the district court erred by not “methodically dissecting and analyzing each\nseparate workweek” to determine whether the exemptions applied at any given time. (Plaintiffs’ Br. at 34.)\nHowever, the section of the FLSA regulations that Plaintiffs cite in support of that proposition is not applicable to\nthis case, because it only relates to the exemptions applicable to agricultural workers. 29 C.F.R. § 780.11. The\nregulations applicable to the executive and administrative exemptions, in contrast, state that an employee may be\nsubject to the exemptions even if part of that employee’s time is spent performing nonexempt work. 29 C.F.R.\n§ 541.700.\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 8\n\n\n A. Primary Duty\n\n The district court found that Plaintiffs’ primary duty was managerial in nature, satisfying\nthe second element of the executive exemption. The district court focused on the fact that\nPlaintiffs “were required to directly supervise lower-ranking officers and personnel, evaluate\npersonnel, administer and enforce department policy, and coordinate the day-to-day operations\nof the department.” (R. 129, Transcript, PageID # 1321.) The district court pointed to several\npieces of evidence and testimony that supported this finding. It noted that testimony established\nthat the battalion chiefs were expected to “take charge and operate as the incident commanders at\nthe scene of a fire.” (Id. at PageID # 1322 (internal quotations omitted).) Additionally, the\ndistrict court stated:\n\n Chief Schmaltz and Chief [Hausman] both testified that plaintiff Holt was “in\n charge” of all suppression personnel and plaintiff Erskine was “in charge” or\n “oversaw” the training division. Approximately 27 lieutenants and captains\n directly reported to plaintiff Holt[,] who monitored their adherence to standards.\n Moreover, Chief [Hausman] testified that if any fire fighter “had a problem[,]” he\n or she would take it to plaintiff Holt.\n\n(Id. at PageID # 1322–23.) Finally, the district court recognized that even Plaintiffs had referred\nto themselves as “management” in a June 4, 2014 letter to Chief Schmaltz.\n\n This evidence supports the district court’s conclusion that Plaintiffs’ primary duty was\nmanagement of the City of Battle Creek fire department. Plaintiffs argue that the district court’s\nconclusion was clear error because Plaintiffs’ “actual[] job duties, not the ones described in their\n[Standard Operating Procedures], were that of a regular rank and file firefighter, with [a] few\nadded responsibilities for the sake of preserving order in chaos in a fire fight.” (Plaintiffs’ Reply\nBr. at 7.) In essence, Plaintiffs argue that the district court should have weighed the evidence\ndifferently to conclude that Plaintiffs’ primary duties were not managerial. This argument is\nunpersuasive. Ample evidence supports the district court’s conclusion, so this Court cannot\nsecond-guess the district court’s factual findings. See Anderson, 470 U.S. 573–74. The district\ncourt did not commit clear error in concluding that Plaintiffs’ duties were primarily managerial.\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 9\n\n\n B. Recommendations Given Particular Weight\n\n The district court found that the fourth element of the executive exemption was also\nsatisfied. While the district court recognized that Plaintiffs did not have independent authority to\nhire, fire, or suspend fire fighters, it credited certain testimony as showing that Plaintiffs’\n“suggestions and recommendations as to hiring, firing, advancement, promotion or any other\nchange of status of other employees were given ‘particular weight.’” (R. 129, Transcript,\nPageID # 1324–25.) The district court stated:\n\n Chief [Hausman] testified that plaintiff Holt was the person who was responsible\n for oral and written disciplinary proceedings of the fire fighters, and that Holt\n issued the “majority” of the discipline in the department. Chief [Hausman]\n testified that he gave “a lot of weight” to plaintiff Holt’s recommendation, that he\n did “not operate in a vacuum.” Chief [Hausman] also specifically testified that\n plaintiff Erskine, the administrative battalion chief, was responsible for managing\n vacation and “Kelly days” in the department.\n\n(Id.) The district court also pointed to Chief Schmaltz’s testimony that he “specifically requested\n[P]laintiffs’ input concerning personnel decisions” and the testimony of the former employee\nrelations director for the City of Battle Creek that Plaintiffs played a “significant role” in hiring\ndecisions. (Id. at PageID # 1325.)\n\n Plaintiffs again argue that the district court’s conclusion was erroneous. Plaintiffs point\nto specific pieces of evidence purportedly showing that they did not have the requisite authority\nregarding personnel decisions under 29 C.F.R. § 541.100(a)(4). Specifically, Plaintiffs highlight\nparts of their testimony in which they described times the fire chiefs overruled Plaintiffs’\ndisciplinary recommendations. However, this element of the executive exemption does not\nrequire courts to ask whether an employee’s recommendations as to personnel decisions were\naccepted every single time—instead, it presents the question of whether those recommendations\nwere given “particular weight,” which is precisely what the district court found. This argument\npresents yet another example of the district court making a reasonable choice between two\npermissible views of the evidence. See Anderson, 470 U.S. 573–74. The district court cited\nsufficient evidence to support its finding that Plaintiffs’ recommendations were given particular\nweight. The district court did not commit clear error in reaching that conclusion.\n\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 10\n\n\n Our determination that the district court did not commit clear error in finding Plaintiffs\nsubject to the executive exemption is sufficient to uphold the district court’s denial of Plaintiffs’\nclaim for overtime compensation under the FLSA. Therefore, we need not address the district\ncourt’s additional conclusions that Plaintiffs were also subject to the FLSA’s administrative\nexemption and that, even if the exemptions did not apply, standby time was not so onerous as to\nbe compensable under the FLSA.\n\n CONCLUSION\n\n The district court did not commit clear error in holding that Plaintiffs were subject to the\nexecutive exemption under the FLSA. We therefore AFFIRM the decision of the district court.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Howard HOLT ; Martin Erskine, Plaintiffs-Appellants, v. CITY OF BATTLE CREEK, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-03\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0114p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n HOWARD HOLT; MARTIN ERSKINE, ┐\\n Plaintiffs-Appellants, │\\n │\\n > No. 18-1981\\n v. │\\n │\\n │\\n CITY OF BATTLE CREEK, │\\n Defendant-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Western District of Michigan at Grand Rapids.\\n No. 1:15-cv-00931—Janet T. Neff, District Judge.\\n\\n Argued: May 3, 2019\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: GUY, CLAY, and GRIFFIN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Robert Anthony Alvarez, Agustin Henriquez, Jr., AVANTI LAW GROUP, PLLC,\\nWyoming, Michigan, for Appellants. Gregory N. Longworth, CLARK HILL PLC, Grand\\nRapids, Michigan, for Appellee. ON BRIEF: Robert Anthony Alvarez, AVANTI LAW\\nGROUP, PLLC, Wyoming, Michigan, for Appellants. Gregory N. Longworth, CLARK HILL\\nPLC, Grand Rapids, Michigan, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n CLAY, Circuit Judge. Plaintiffs Howard Holt and Martin Erskine appeal from the\\njudgment entered in favor of Defendant City of Battle Creek on Plaintiffs’ claim that Defendant\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 2\\n\\n\\nviolated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., by failing to pay\\nPlaintiffs overtime wages. For the reasons set forth below, we AFFIRM the decision of the\\ndistrict court.\\n\\n BACKGROUND\\n\\n Factual History\\n\\n Plaintiffs Holt and Erskine each served as a battalion chief in Defendant’s fire\\ndepartment. Holt was the “suppression” battalion chief from 2007 until his retirement in 2015;\\nErskine became the “administrative” battalion chief in 2012 and has not retired. Battalion chiefs\\nare second in command in the fire department hierarchy, behind the fire chief but ahead of other\\nemployees. Plaintiffs served under three different fire chiefs: Chief Larry Hausman from 1997\\nthrough April 2013, Chief Jackie Hampton from April 2013 through January 2014, and Chief\\nArthur David Schmaltz from February 2014 through the rest of the time period at issue.\\n\\nI. Battalion Chief Job Responsibilities\\n\\n The City of Battle Creek’s job description for battalion chiefs included the following\\nsummary of the position’s responsibilities:\\n\\n Provides supervision to fire fighting personnel; Implements the incident command\\n system and serves as incident commander at all incidents; Accepts responsibility\\n for assigned administrative and fire prevention functions; Functions as the chief\\n administrative officer of the department in absence of the Fire Chief and Deputy\\n Fire Chief; Actively supports the decisions and policies of the City and fire\\n administration and performs related work as required.\\n\\n(Appellee Appendix, Joint Exhibit 5, A32.) The document also described essential job functions\\nof the battalion chiefs, which included “[p]repar[ing] and administer[ing] disciplinary actions\\nagainst subordinate personnel in the form of coaching and counseling, oral and written\\nreprimands;” “[c]onduct[ing] evaluations of immediate subordinate personnel, review[ing]\\nevaluations of other personnel assigned to shift, and provid[ing] feedback to subordinate\\npersonnel;” “[i]nspect[ing] fire stations, apparatus, equipment, and personnel to ensure\\noperational readiness on a daily basis;” and “[p]lan[ning] and coordinat[ing] daily activities of\\nshift personnel in concert with training, pre-plan inspections, maintenance, and public activities\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 3\\n\\n\\nsuch as fire prevention.” (Id.) While Plaintiffs did not have direct authority to make hiring and\\nfiring decisions, they conducted performance evaluations that were used in the promotional\\nprocess and were otherwise involved in advancement decisions.\\n\\n An internal department memo described the different areas of responsibility of the\\nadministrative and suppression battalion chiefs. Erskine’s responsibilities as administrative\\nbattalion chief included training fire department personnel, ensuring road safety, creating a “plan\\nof the day” and “plan of the week” for the officers and firefighters, and approving vacation\\nrequests. As suppression battalion chief, Holt’s responsibilities listed in the memo included\\nserving as the immediate supervisor for station officers, maintaining fire department standards,\\nhandling facility issues, and overseeing uniforms and supplies.\\n\\n Chief Hausman testified that the “primary responsibility” of the battalion chiefs and fire\\nchief was “not physical work, it was . . . management and leadership,” and that the “majority” of\\ntheir jobs consisted of “administrative functions, you know, management.” (R. 122, Hausman\\nDeposition, PageID # 1012.) When called to a fire, a battalion chief’s role as incident\\ncommander, according to Chief Hausman, was to remain in the vehicle and “manage, lead, and\\ndirect” the fire suppression efforts by “monitoring the situation[ and] taking input from the\\ncompany officers.” (Id. at PageID # 1013.) Chiefs Hausman and Schmaltz each testified that\\nthey gave particular weight to Holt’s recommendations regarding discipline; Schmaltz referred to\\nthe battalion chiefs as his “senior staff.” (R. 128, Transcript, PageID # 1077.) Holt and Erskine\\neach testified that while they had the power to issue verbal and written reprimands, the ultimate\\ndecision as to discipline rested with the fire chief, and the fire chief occasionally overrode\\nPlaintiffs’ disciplinary recommendations.\\n\\nII. Standby Duty\\n\\n As battalion chiefs, Plaintiffs were required to periodically serve on “standby” duty.\\nStandby duty typically rotated between Holt, Erskine, and the fire chief, with the individual\\nserving on standby required to be “on call” from 5:00 pm until 8:00 am the following morning\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 4\\n\\n\\nfor seven days.1 Plaintiffs received 1.5 hours of pay for each day of standby duty, in addition to\\novertime pay for hours worked if they were called back to active duty while on standby. The\\nindividual on standby duty was required to monitor a pager and a radio, answer phone calls if\\nneeded, and help handle problems if they arose.\\n\\n Plaintiffs were occasionally required to respond to the scene of a fire while on standby\\nduty. Therefore, Plaintiffs’ activities were somewhat restricted during the weeks they were on\\nstandby. The officer on standby duty could not drink alcohol or go out of town. Plaintiffs both\\ntestified that they stopped playing organized sports while on standby, out of concern that they\\nwould not hear the pager if it went off while they were playing. Holt testified that when he and\\nhis wife went out to eat while he was on standby, they had to take two cars so that she would not\\nbe left stranded at the restaurant if he had to go to the scene of a fire; Holt’s wife testified that\\n“when he was on call, we were pretty much prisoners right there in the house.” (R. 128,\\nTranscript, PageID # 1104.) Mrs. Holt also testified that standby duty disrupted their sleep,\\nbecause the pager would occasionally go off during the night if an “all stations” fire occurred.\\n\\n Chief Hausman’s testimony differed from Plaintiffs’ regarding the restrictiveness of\\nstandby duty. While Holt and Erskine testified that they continually monitored their radios\\nduring standby duty, Hausman testified that there was “no expectation [that] the radio [would be]\\nmonitored 24/7” during standby, because the pager provided sufficient notice of an alarm.\\n(R. 122, Hausman Deposition, PageID # 1014.) Chief Schmaltz testified that he left his radio in\\nhis car when he was at home on standby duty for the same reason. Hausman also testified that\\nother battalion chiefs had been able to engage in activities such as golfing and working on a\\nhorse farm while on standby. Hausman stated that standby duty was not so onerous as to prevent\\nhim from effectively using his time for personal pursuits.\\n\\n Procedural History\\n\\n On September 12, 2015, Plaintiffs filed a complaint in federal court alleging that the City\\nof Battle Creek had violated the FLSA by failing to pay overtime for hours worked in excess of\\n\\n 1In 2015, the City of Battle Creek transitioned from the week-long standby system to 24-hour shift\\nrotations, with battalion chiefs now paid for every hour they are on call.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 5\\n\\n\\n40 per week due to standby duty. Defendant filed a motion to dismiss in favor of arbitration on\\nJuly 20, 2016 and a motion for summary judgment on November 13, 2017; the district court\\ndenied both motions. After a bench trial, the district court ruled that Plaintiffs were exempt from\\nthe FLSA’s overtime pay requirement under both the executive and the administrative\\nexemptions. The district court also held that, even if Plaintiffs “were within the classes of\\nemployees subject to FLSA coverage, their duties during standby time were not so onerous as to\\nprevent them from effectively using the time for personal pursuits.” (R. 129, Transcript, PageID\\n# 1333.) This appeal followed.\\n\\n DISCUSSION\\n\\nI. Applicability of the “Fair Reading” Standard\\n\\n Standard of Review\\n\\n “After a bench trial, we review the district court’s factual findings for clear error and its\\nconclusions of law de novo.” Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 643–44 (6th Cir.\\n2013). Because this issue involves a legal question, we review it de novo.\\n\\n Analysis\\n\\n The FLSA requires employers to pay overtime compensation to employees who work\\nmore than 40 hours a week. The FLSA exempts certain classes of employees from the overtime\\npay requirements. 29 U.S.C. § 213. Until recently, courts “narrowly construed [the exemptions]\\nagainst the employers seeking to assert them.” See, e.g., Thomas v. Speedway SuperAmerica,\\nLLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,\\n392 (1960)). In the 2018 case Encino Motorcars, LLC v. Navarro, however, the Supreme Court\\nheld that courts should apply a “fair reading” to the exemptions. 138 S. Ct. 1134, 1142 (2018).\\nThe district court in this case followed the Supreme Court’s instruction to give the exemptions a\\nfair reading, and under that standard, it determined that Plaintiffs were exempt from the FLSA’s\\novertime requirement under the executive and administrative exemptions.\\n\\n Plaintiffs argue that the district court erred in applying the fair reading standard to the\\nFLSA exemptions. According to Plaintiffs, the Supreme Court’s language in Encino endorsing a\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 6\\n\\n\\n“fair” instead of a “narrow” construction of the FLSA exemptions is dicta as applied to anything\\nother than the salesman exemption that was under consideration in Encino. Under Plaintiffs’\\ntheory, all exemptions other than the salesman exemption are still subject to a narrow\\ninterpretation.\\n\\n Plaintiffs’ theory is incorrect. Even if the Supreme Court’s statement in Encino was dicta\\noutside of the context of the salesman exemption, “[l]ower courts are obligated to follow\\nSupreme Court dicta, particularly where there is not substantial reason for disregarding it, such\\nas age or subsequent statements undermining its rationale.” In re Baker, 791 F.3d 677, 682 (6th\\nCir. 2015) (alteration in original) (quoting ACLU of Ky. v. McCreary Cty., Ky., 607 F.3d 439,\\n447–48 (6th Cir. 2010)). Encino is a recent Supreme Court decision, and there have been no\\nintervening Supreme Court cases casting doubt on its analysis. Moreover, this Court and others\\nhave applied Encino’s fair reading standard outside of the salesman exemption. See Mosquera v.\\nMTI Retreading Co., 745 F. App’x 568, 570–71 (6th Cir. 2018) (professional exemption); Flood\\nv. Just Energy Mktg. Corp., 904 F.3d 219, 228 (2d Cir. 2018) (outside salesman exemption);\\nCarley v. Crest Pumping Techs., LLC, 890 F.3d 575, 579 (5th Cir. 2018) (Motor Carrier Act\\nexemption). The district court was bound by the Supreme Court’s pronouncement in Encino,\\nand it did not err by applying the fair reading standard in this case.\\n\\nII. Applicability of the Exemptions\\n\\n Standard of Review\\n\\n As explained above, we review the district court’s factual findings for clear error and\\nconclusions of law de novo. Fed. R. Civ. P. 52(a); Foster, 710 F.3d at 644. This issue involves\\nthe district court’s factual findings, so clear error review applies. Icicle Seafoods, Inc. v.\\nWorthington, 475 U.S. 709, 713 (1986) (“[T]he facts necessary to a proper determination of the\\nlegal question whether an exemption to the FLSA applies in a particular case should be reviewed\\nby the courts of appeals [for clear error] . . . .”). “In [its] review of the district court’s factual\\nfindings, this Court gives due regard to the district court’s opportunity to judge the credibility of\\nthe witnesses.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 597 (6th Cir. 2001).\\n“Clear error will be found only when the reviewing court is left with the definite and firm\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 7\\n\\n\\nconviction that a mistake has been committed.” Max Trucking, LLC v. Liberty Mut. Ins. Corp.,\\n802 F.3d 793, 808 (6th Cir. 2015). As the Supreme Court has explained:\\n\\n If the district court’s account of the evidence is plausible in light of the record\\n viewed in its entirety, the court of appeals may not reverse it even though\\n convinced that had it been sitting as the trier of fact, it would have weighed the\\n evidence differently. Where there are two permissible views of the evidence, the\\n factfinder’s choice between them cannot be clearly erroneous.\\n\\nAnderson v. Bessemer City, 470 U.S. 564, 573–74 (1985). Therefore, “when a trial judge’s\\nfinding is based on his decision to credit the testimony of one of two or more witnesses, each of\\nwhom has told a coherent and facially plausible story that is not contradicted by extrinsic\\nevidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id. at\\n575.\\n\\n Analysis\\n\\n The district court found that Plaintiffs were exempt from the FLSA’s overtime pay\\nrequirements under both the executive and the administrative exemptions. Plaintiffs argue this\\nwas clear error.2 For the reasons set forth below, the district court did not clearly err in finding\\nPlaintiffs exempt from the FLSA’s overtime pay requirements.\\n\\n The executive exemption of the FLSA has four elements. 29 C.F.R. § 541.100. Only the\\nsecond and fourth elements are at issue in this case. The second element states that an executive\\nemployee is one “[w]hose primary duty is management of the enterprise in which the employee\\nis employed or of a customarily recognized department or subdivision thereof.” 29 C.F.R.\\n§ 541.100(a)(2). The fourth element states that an executive employee is one “[w]ho has the\\nauthority to hire or fire other employees or whose suggestions and recommendations as to the\\nhiring, firing, advancement, promotion or any other change of status of other employees are\\ngiven particular weight.” 29 C.F.R. § 541.100(a)(4).\\n\\n 2Plaintiffs also argue that the district court erred by not “methodically dissecting and analyzing each\\nseparate workweek” to determine whether the exemptions applied at any given time. (Plaintiffs’ Br. at 34.)\\nHowever, the section of the FLSA regulations that Plaintiffs cite in support of that proposition is not applicable to\\nthis case, because it only relates to the exemptions applicable to agricultural workers. 29 C.F.R. § 780.11. The\\nregulations applicable to the executive and administrative exemptions, in contrast, state that an employee may be\\nsubject to the exemptions even if part of that employee’s time is spent performing nonexempt work. 29 C.F.R.\\n§ 541.700.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 8\\n\\n\\n A. Primary Duty\\n\\n The district court found that Plaintiffs’ primary duty was managerial in nature, satisfying\\nthe second element of the executive exemption. The district court focused on the fact that\\nPlaintiffs “were required to directly supervise lower-ranking officers and personnel, evaluate\\npersonnel, administer and enforce department policy, and coordinate the day-to-day operations\\nof the department.” (R. 129, Transcript, PageID # 1321.) The district court pointed to several\\npieces of evidence and testimony that supported this finding. It noted that testimony established\\nthat the battalion chiefs were expected to “take charge and operate as the incident commanders at\\nthe scene of a fire.” (Id. at PageID # 1322 (internal quotations omitted).) Additionally, the\\ndistrict court stated:\\n\\n Chief Schmaltz and Chief [Hausman] both testified that plaintiff Holt was “in\\n charge” of all suppression personnel and plaintiff Erskine was “in charge” or\\n “oversaw” the training division. Approximately 27 lieutenants and captains\\n directly reported to plaintiff Holt[,] who monitored their adherence to standards.\\n Moreover, Chief [Hausman] testified that if any fire fighter “had a problem[,]” he\\n or she would take it to plaintiff Holt.\\n\\n(Id. at PageID # 1322–23.) Finally, the district court recognized that even Plaintiffs had referred\\nto themselves as “management” in a June 4, 2014 letter to Chief Schmaltz.\\n\\n This evidence supports the district court’s conclusion that Plaintiffs’ primary duty was\\nmanagement of the City of Battle Creek fire department. Plaintiffs argue that the district court’s\\nconclusion was clear error because Plaintiffs’ “actual[] job duties, not the ones described in their\\n[Standard Operating Procedures], were that of a regular rank and file firefighter, with [a] few\\nadded responsibilities for the sake of preserving order in chaos in a fire fight.” (Plaintiffs’ Reply\\nBr. at 7.) In essence, Plaintiffs argue that the district court should have weighed the evidence\\ndifferently to conclude that Plaintiffs’ primary duties were not managerial. This argument is\\nunpersuasive. Ample evidence supports the district court’s conclusion, so this Court cannot\\nsecond-guess the district court’s factual findings. See Anderson, 470 U.S. 573–74. The district\\ncourt did not commit clear error in concluding that Plaintiffs’ duties were primarily managerial.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 9\\n\\n\\n B. Recommendations Given Particular Weight\\n\\n The district court found that the fourth element of the executive exemption was also\\nsatisfied. While the district court recognized that Plaintiffs did not have independent authority to\\nhire, fire, or suspend fire fighters, it credited certain testimony as showing that Plaintiffs’\\n“suggestions and recommendations as to hiring, firing, advancement, promotion or any other\\nchange of status of other employees were given ‘particular weight.’” (R. 129, Transcript,\\nPageID # 1324–25.) The district court stated:\\n\\n Chief [Hausman] testified that plaintiff Holt was the person who was responsible\\n for oral and written disciplinary proceedings of the fire fighters, and that Holt\\n issued the “majority” of the discipline in the department. Chief [Hausman]\\n testified that he gave “a lot of weight” to plaintiff Holt’s recommendation, that he\\n did “not operate in a vacuum.” Chief [Hausman] also specifically testified that\\n plaintiff Erskine, the administrative battalion chief, was responsible for managing\\n vacation and “Kelly days” in the department.\\n\\n(Id.) The district court also pointed to Chief Schmaltz’s testimony that he “specifically requested\\n[P]laintiffs’ input concerning personnel decisions” and the testimony of the former employee\\nrelations director for the City of Battle Creek that Plaintiffs played a “significant role” in hiring\\ndecisions. (Id. at PageID # 1325.)\\n\\n Plaintiffs again argue that the district court’s conclusion was erroneous. Plaintiffs point\\nto specific pieces of evidence purportedly showing that they did not have the requisite authority\\nregarding personnel decisions under 29 C.F.R. § 541.100(a)(4). Specifically, Plaintiffs highlight\\nparts of their testimony in which they described times the fire chiefs overruled Plaintiffs’\\ndisciplinary recommendations. However, this element of the executive exemption does not\\nrequire courts to ask whether an employee’s recommendations as to personnel decisions were\\naccepted every single time—instead, it presents the question of whether those recommendations\\nwere given “particular weight,” which is precisely what the district court found. This argument\\npresents yet another example of the district court making a reasonable choice between two\\npermissible views of the evidence. See Anderson, 470 U.S. 573–74. The district court cited\\nsufficient evidence to support its finding that Plaintiffs’ recommendations were given particular\\nweight. The district court did not commit clear error in reaching that conclusion.\\n\\f No. 18-1981 Holt, et al. v. City of Battle Creek Page 10\\n\\n\\n Our determination that the district court did not commit clear error in finding Plaintiffs\\nsubject to the executive exemption is sufficient to uphold the district court’s denial of Plaintiffs’\\nclaim for overtime compensation under the FLSA. Therefore, we need not address the district\\ncourt’s additional conclusions that Plaintiffs were also subject to the FLSA’s administrative\\nexemption and that, even if the exemptions did not apply, standby time was not so onerous as to\\nbe compensable under the FLSA.\\n\\n CONCLUSION\\n\\n The district court did not commit clear error in holding that Plaintiffs were subject to the\\nexecutive exemption under the FLSA. We therefore AFFIRM the decision of the district court.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2482,"cells":{"id":{"kind":"number","value":4625973,"string":"4,625,973"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jane Doe v. Deja Vu Consulting, Inc."},"decision_date":{"kind":"string","value":"2019-06-03"},"docket_number":{"kind":"string","value":"17-1827"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"COLE, Chief Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0113p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n JANE DOES 1–2, ┐\\n Plaintiffs-Appellees, │\\n │\\n │\\n EVA CABRERA and BRITTNEY HALVERSON (17-1801); │\\n B.D. (17-1802); C.T. (17-1827), > Nos. 17-1801/1802/1827\\n Objectors-Appellants. │\\n │\\n │\\n v. │\\n │\\n DÉJÀ VU CONSULTING, INC., dba Déjà Vu of Saginaw, │\\n Inc., nka Déjà Vu Services, Inc., et al., │\\n │\\n │\\n Defendants-Appellees. │\\n ┘\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:16-cv-10877—Stephen J. Murphy, III, District Judge.\\n\\n Argued: October 17, 2018\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Harold L. Lichten, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for\\nall Appellants. Jason J. Thompson, SOMERS SCHWARTZ, P.C., Southfield, Michigan, for\\nJane Doe Appellees. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan,\\nfor Déjà Vu Appellees. ON BRIEF: Harold L. Lichten, Shannon Liss-Riordan, Matthew\\nThomson, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for Appellants in 17-\\n1801. Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,\\nMichigan, for Déjà Vu Appellees. Charles P. Yezbak, III, Daniel Eduardo Arciniegas, YEZBAK\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 2\\n\\n\\nLAW OFFICES, Nashville, Tennessee, for Appellant in 17-1802. W. Allen McDonald, LACY,\\nPRICE & WAGNER, P.C., Knoxville, Tennessee, for Appellant in 17-1827. Beth M. Rivers,\\nPITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Jane Doe Appellees.\\n\\n COLE, C.J., delivered the opinion of the court in which NALBANDIAN, J., joined, and\\nWHITE, J., joined in part. WHITE, J. (pp. 17–22), delivered a separate opinion dissenting in\\npart.\\n _________________\\n\\n OPINION\\n _________________\\n\\n COLE, Chief Judge. After a class of 28,177 exotic dancers alleged that Déjà Vu dance\\nclubs violated the Fair Labor Standards Act and state wage-and-hour laws, Déjà Vu and the class\\nof dancers entered into a settlement agreement. The district court approved the settlement over\\nthe objections of four class members who now appeal, arguing that the settlement was\\nfundamentally unfair and failed to comport with procedural requirements for class action\\nsettlements. Because the district court did not abuse its discretion in approving the settlement,\\nwe affirm.\\n\\n I.\\n\\n This class of dancers was not the first to sue Déjà Vu for alleged Fair Labor Standards\\nAct (“FLSA”) and state law violations. In 2008, a class of dancers filed a class action lawsuit in\\nthe Eastern District of Michigan, alleging that two dance clubs—Cin-Lan, Inc., and Déjà Vu\\nConsulting, Inc.—misclassified them as non-employees or independent contractors in violation\\nof the FLSA and the Michigan Minimum Wage Act. Over the next three years, the parties\\nengaged in extensive discovery and motion practice. After more than six months of negotiations,\\nthey entered into a settlement agreement that provided the dancers monetary compensation and\\ninjunctive relief. The district court approved the settlement (“Cin-Lan Settlement”) and retained\\njurisdiction to ensure its enforcement. Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2011 WL\\n13266312 (E.D. Mich. July 15, 2011).\\n\\n On March 10, 2016—five years after the approval of the Cin-Lan Settlement—another\\ndancer (“Jane Doe 1”) filed a complaint against Déjà Vu Consulting, its affiliate dance clubs, and\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 3\\n\\n\\nits owner Harry Mohney (collectively, “Déjà Vu”) in the Eastern District of Michigan. Jane Doe\\n1 filed the complaint as both a class action under Federal Rule of Civil Procedure 23 and a\\ncollective action under 29 U.S.C. § 216(b) of the FLSA, seeking to bring the action on behalf of\\nherself and “[a]ll exotic dancers who worked for Defendants and were misclassified by\\nDefendants as independent contractors at any time in the past three years” (collectively, “the\\nDancers”). (Compl., R. 1, PageID 24–25 (italics in original).) This lawsuit involves the same\\nclass counsel, many of the same dancers, one of the same defendants, and similar claims as the\\ninitial Cin-Lan dispute. Specifically, the Dancers allege that Déjà Vu’s clubs violated the FLSA\\nand state wage-and-hour laws by “intentionally misclassif[ying] class members as independent\\ncontractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split\\ngratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.”\\n(Op. & Order, R. 77, PageID 4200.)1\\n\\n Déjà Vu filed a motion to dismiss or stay proceedings in favor of arbitration on\\nSeptember 16, 2016, and it attached a copy of Jane Doe 1’s Dancer Performance Lease\\nagreement, which included a clause mandating binding individual arbitration for all claims\\narising out of her performances.\\n\\n Before the district court made any rulings on the merits, the parties began negotiating a\\nsettlement agreement. On December 28, 2016, the Dancers’ attorneys notified the court that they\\nhad “executed a tentative term sheet on a settlement.” (Mot. to Transfer Case, R. 22, PageID\\n445.) Additionally, the Dancers filed a motion requesting an intra-district transfer of the case to\\nthe same judge who retained jurisdiction over the Cin-Lan settlement, both because the case\\ninvokes his continuing jurisdiction and because he was “intimately familiar with the facts and\\ncircumstances of the parties’ dispute after presiding over the prior case for approximately four\\nyears.” (Id. at PageID 446.) On January 4, 2017, the district court granted the motion to\\ntransfer.\\n\\n\\n\\n\\n 1Although the Cin-Lan case involved similar allegations, the Cin-Lan settlement did not mandate that the\\nclubs convert the dancers from independent contractors to employees.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 4\\n\\n\\n After negotiation, the parties reached a settlement agreement (“Settlement Agreement”).\\nIn exchange for releasing their claims against Déjà Vu, the Settlement Agreement provides the\\nDancers with injunctive and monetary relief.\\n\\n The injunctive relief is structured around the Settlement Agreement’s requirement that\\nevery club provide its current dancers with an Entertainer Assessment Form. This assessment\\ndetermines whether the dancer should be classified as an employee or an Independent\\nProfessional Entertainer (“IPE”), the latter of which is akin to an independent contractor. The\\nSettlement Agreement requires dancers to complete the assessment before they can perform at\\nany of Déjà Vu’s clubs. The assessment must then be verified by the club’s Certified Public\\nAccountant.\\n\\n The remaining injunctive relief turns on whether the assessment determines the dancer in\\nquestion is an employee or an IPE. Under the Settlement Agreement, employees may be\\nrequired to tip-out or tip-pool with the club’s other employees, but they must be paid minimum\\nwage (or, where available, at the tip-credited wage). Employees will also be entitled to\\ncommissions of at least 20% of their dance fees that exceed the cost of employment, as well as\\n20% commissions of their sale of ‘conversation beverages,’ which are drinks that dancers\\npersuade customers to buy for them. Employees will be reimbursed by the club for all license\\nand permit fees required to perform at the club, and the club will provide them with two logo\\ncostumes per month to wear while working. In contrast, the Settlement Agreement prevents\\nDéjà Vu from imposing any work schedule upon IPEs or requiring IPEs to tip-out or tip-pool\\nwith any employee. IPEs also cannot be required to wear any costume. Finally, IPEs will have\\nthe right to vote in each club’s annual IPE meeting to change or modify any club policy that\\naffects IPEs, which ensures that they have sufficient control over the clubs’ operations to prevent\\nDéjà Vu from exerting employer-employee control over IPEs.\\n\\n With respect to monetary relief, the Settlement Agreement divides a total award of $6.55\\nmillion into three primary categories: $1 million toward the Net Cash Payment Settlement Fund\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 5\\n\\n\\n(“the cash pool”), $4.5 million toward Secondary Pool Remuneration (“the secondary pool”),\\nand $900,000 in attorneys’ fees.2\\n\\n The first two categories serve as alternative forms of monetary relief for the class\\nmembers. The first option is to receive a one-time payment from the cash pool. The $1 million\\ncash pool includes $30,000 in Enhancement Payments for the named plaintiffs and $50,000 to\\npay defendants’ Administration Costs. After subtracting these costs, the total cash pool to be\\nsplit between all of the Dancers who elect to receive a one-time direct payment is $920,000.\\nCash pool funds will be allocated on a point-based system that favors dancers who worked for\\nthe clubs for a longer period of time, as well as dancers who worked more recently at Déjà Vu’s\\nclubs.\\n\\n The second option is to collect settlement funds from the secondary pool in the form of\\ncredits that can be used at Déjà Vu clubs. This is the default form of relief for Dancers who do\\nnot opt into the cash pool: each time a class member performs at one of Déjà Vu’s clubs, credits\\nfrom the secondary pool will either cover 60% of her daily rent at the club or allow her to collect\\nup to $100 in dance fees. Depending on how many months the dancer has performed at the Déjà\\nVu club where she collects the credits, the total amount of money she can recuperate from the\\nsecondary pool is capped at $200, $1,000, or $2,000.\\n\\n Finally, the Settlement Agreement provides compensation for the Dancers’ attorneys.\\nUnder the Settlement Agreement, Déjà Vu agrees not to oppose an award of up to $900,000 in\\ndirect attorneys’ fees. Déjà Vu also agrees not to oppose an award of up to $300,000 in indirect\\nattorneys’ fees to be paid out of the Dancers’ secondary pool. The Settlement Agreement\\nestablishes that the indirect fees are to be calculated based on 33.3% of the value of the redeemed\\nportion of the secondary pool. These indirect fees are designed to encourage the Dancers’\\ncounsel to try and shore up as much participation as possible in the secondary pool by creating a\\n“direct financial incentive” for their work. (Déjà Vu Br. 64 (italics in original).)\\n\\n\\n\\n\\n 2The Settlement Agreement also allocates $100,000 to resolve all Private Attorneys General Act claims\\nagainst its clubs in California.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 6\\n\\n\\n On June 19, 2017, the district court approved the Settlement Agreement. In finding that\\nthe parties satisfied their burden to show that the Settlement Agreement was fair, the district\\ncourt turned to International Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631\\n(6th Cir. 2007) (“UAW”), which established a set of factors to determine the fairness of class\\naction settlements. In particular, the court stressed the first factor—the comparison between the\\nrelief offered in the Settlement Agreement and the Dancers’ likelihood of success on the merits\\nagainst Déjà Vu. The court emphasized the “high risk of continued litigation and the uncertain\\nlikelihood of success on the merits” for the Dancers, finding that without the Settlement\\nAgreement, “the vast majority of class members would recover nothing.” (Op. & Order, R. 77,\\nPageID 4212, 4221.) The court also found that the Settlement Agreement “offers value to the\\nclass in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to\\nDefendants’ business practices, all of which directly benefit class members.” (Id. at PageID\\n4212.) After analyzing the remaining UAW factors, the court concluded that the Settlement\\nAgreement “is the result of a bona-fide dispute, and the terms established in the settlement are a\\nfair, reasonable, and adequate resolution of the claims.” (Id. at PageID 4216.)\\n\\n Four members of the class—Eva Cabrera, Brittney Halverson, B.D., and C.T.\\n(collectively, “the Objectors”)—objected to the settlement. The district court overruled their\\nobjections, and they now appeal the approval of the Settlement Agreement. The Objectors’\\narguments fall into two broad categories. First, the Objectors argue that the district court abused\\nits discretion by failing to properly apply the factors that ensure the fairness of settlement\\nagreements, especially with respect to the district court’s attempt to calculate the value of the\\nDancers’ claims. Second, the Objectors argue that the settlement violates the procedural\\nrequirements of Federal Rule of Civil Procedure 23, given the breadth of the class release and the\\nnotice afforded to the unnamed class members.\\n\\n II.\\n\\n We review a district court’s approval of a class action settlement for abuse of discretion.\\nIn re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 7\\n\\n\\n A. UAW Fairness Factors\\n\\n In UAW, we established a seven-factor test to assess whether or not a class action\\nsettlement is “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e).\\n497 F.3d at 631. Those factors include: (1) the “risk of fraud or collusion,” (2) the “complexity,\\nexpense and likely duration of the litigation,” (3) the “amount of discovery engaged in by the\\nparties,” (4) the “likelihood of success on the merits,” (5) the “opinions of class counsel and class\\nrepresentatives,” (6) the “reaction of absent class members,” and (7) the “public interest.” Id.\\n\\n Of the UAW factors, “[t]he most important of the factors to be considered in reviewing a\\nsettlement is the probability of success on the merits.” Poplar Creek Dev. Co. v. Chesapeake\\nAppalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011). Thus, we address the most important\\nfactor first before proceeding to the remaining factors.\\n\\n 1. Likelihood of Success on the Merits\\n\\n A court “cannot judge the fairness of a proposed compromise without weighing the\\nplaintiff’s likelihood of success on the merits against the amount and form of the relief offered in\\nthe settlement.” UAW, 497 F.3d at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88\\n(1981)). For this reason, all class action settlements involve a balancing of competing interests.\\nWhen extinguishing the claims of a large class of people—some of whom may not even be\\naware that a pending lawsuit affects their rights—courts are required to closely analyze whether\\nthe claims that the unnamed class members are giving up are worth the benefits they may\\nreceive. Balancing those interests is difficult in cases involving industries rife with turnover, fear\\nof retaliation, and unequal bargaining interests between the class and the defendants. The district\\ncourt appropriately gave a great deal of consideration to this factor.\\n\\n After evaluating a damages model based on records from Jane Doe 1 and one other class\\nmember, as well as the high risks inherent in litigation and the potential impact of the mandatory\\narbitration clause on the Dancers’ claims, the district court found that the direct benefits provided\\nby the Settlement Agreement outweighed the value of the Dancers’ claims. We affirm, as the\\ndistrict court did not abuse its discretion in valuing the Dancers’ claims or the Settlement\\nAgreement.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 8\\n\\n\\n i. Value of the Dancers’ Claims\\n\\n The Objectors’ primary claim is that the district court abused its discretion by improperly\\ncalculating the value of the FLSA and state wage-and-hour claims that the Dancers were\\nrelinquishing in the Settlement Agreement. As a result of limited discovery and the absence of a\\nclass-wide damages model, the Objectors contend that the Settlement Agreement\\nundercompensates the class. By estimating the number of dancers working at a club per shift,\\nthe length of their shifts, and multiplying it by the federal minimum wage, the Objectors estimate\\nthat if the class action proceeded to trial, with 64 clubs, the plaintiffs could receive up to\\n$141 million dollars.3 Alternatively, the Objectors point to other dancer disputes as a basis for\\ncomparison, identifying over a dozen jury trials and settlements that provide dancers with higher\\nawards than the Settlement Agreement. Thus, the Objectors argue that the Settlement\\nAgreement’s cash pool pales in comparison to the damages that the Dancers could receive if they\\nwent to trial, and the Settlement Agreement is inadequate to justify releasing the Dancers’ claims\\nagainst Déjà Vu.\\n\\n In evaluating settlements, courts are not required “to reach any ultimate conclusions on\\nthe contested issues of fact and law which underlie the merits of the dispute, for it is the very\\nuncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that\\ninduce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San\\nFrancisco, 688 F.2d 615, 625 (9th Cir. 1982). That sentiment is reinforced here, where Déjà Vu\\nand the Dancers argue that complete, accurate class-wide models can be “impossible to construct\\nin exotic dancer cases,” because “clubs do not maintain adequate records or payroll data needed\\nto prepare common FLSA damage modeling.” (Jane Doe 1 Br. 32–33.)\\n\\n But that is not to say that the court can avoid carefully scrutinizing litigation risks in\\ncomplex class actions. We have found that it can be an abuse of discretion for a district court to\\n“merely recite the respective arguments of the objectors and parties, and then offer up platitudes\\nabout the risks of litigation generally.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,\\n825 F.3d 299, 309 (6th Cir. 2016). “Instead, the district court must specifically examine what\\n\\n 3This estimate is undercut by the fact that the Objectors argued at the fairness hearing below that the\\nDancers could receive only $70 million at trial.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 9\\n\\n\\nthe unnamed class members would give up in the proposed settlement, and then explain why—\\ngiven their likelihood of success on the merits—the tradeoff embodied in the settlement is fair to\\nunnamed members of the class.” Id.\\n\\n Here, the district court did not abuse its discretion in determining that the benefits of the\\nSettlement Agreement outweigh the value of the Dancers’ claims. The district court specifically\\nexamined what the class members were giving up based upon the available records used to\\ncalculate the damages model. The damages model showed the awards that a dancer could\\nreceive based on full or reduced minimum wage, as well as with or without offsetting the fees\\nthat dancers received during their time at Déjà Vu. By accounting for each of these factors and\\npresenting the district court with an array of awards potentially available to the Dancers, the\\nmodel offered some insight into the variation in recovery under different states’ laws. Thus,\\nalthough the court acknowledged that the damages model was imperfect based on the lack of\\nrecords for many class members, it still found that the model was “useful to determine class\\nmembers’ range of possible recovery.” (Op. & Order, R. 77, PageID 4206.) Additionally, in\\nlight of the precedent directing courts to look to the risks faced by the parties at hand rather than\\nthe general risks of litigation, the district court did not abuse its discretion in finding that the\\nmodel was more helpful than the Objectors’ comparisons to sums awarded in other class\\nactions—as the court found, “[t]he key question is not Plaintiffs’ likelihood of success against\\nthe defendants in the cases cited by the objectors[,] but their likelihood of success against\\nDefendants here.” (Id. at PageID 4210.)\\n\\n Moreover, the court did not rely solely on the damages model in assessing the value of\\nthe Dancers’ claims. Before approving the settlement, the district court also considered possible\\ncounterclaims against the Dancers, the potential of an unfavorable verdict finding that the\\nDancers should be classified as independent contractors, and the risk that the Dancers would\\nhave to face mandatory and binding arbitration in compliance with the arbitration clauses in their\\nperformance leases. (Id.)\\n\\n The high risk of arbitration in this case was recently confirmed by the Supreme Court’s\\nopinion in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which transformed the lay of the land\\nfor FLSA actions. Before Epic Systems, FLSA plaintiffs had successfully blocked the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 10\\n\\n\\nenforcement of arbitration clauses in employment contracts under the Federal Arbitration Act’s\\n“saving clause” by arguing that individual arbitration clauses in employment contracts violated\\nfederal law protecting employees’ ability to engage in class or collective actions. Id. at 1620.\\nEpic Systems foreclosed that argument. Id. at 1623, 1626, 1632. In reliance upon Epic Systems,\\nwe have since held that the FLSA’s collective action guarantees do “not displace the Arbitration\\nAct’s requirement that we enforce the employees’ agreements as written.” Gaffers v. Kelly\\nServs., 900 F.3d 293, 296 (6th Cir. 2018); see also McGrew v. VCG Holding Corp., 735 F.\\nApp’x 210, 211 (6th Cir. 2018) (finding that “individual arbitration agreements are enforceable\\nagainst both employees and independent contractors” in case involving exotic dancers). These\\nrulings highlight the uphill battle the Dancers would face in attempting to litigate their claims.\\n\\n If the arbitration clauses in the Dancers’ performance leases are enforced, proceeding\\nwith arbitration poses significant risks to many of the Dancers. One major concern is that the\\nDancers’ performance leases contain arbitration provisions requiring the losing party to pay the\\nprevailing party’s attorneys’ fees. The Objectors also concede that a substantial number of the\\nDancers fear retaliation for bringing a claim against the clubs. In sum, the district court did not\\nabuse its discretion in finding that many of the Dancers would receive little, if any, relief in lieu\\nof the Settlement Agreement. See In re Dry Max Pampers Litig., 724 F.3d at 723\\n(“The conventional argument for class action lawsuits is that the majority of class members’\\nclaims would not otherwise be worth bringing.”).\\n\\n ii. Value of the Settlement Agreement\\n\\n The district court also did not abuse its discretion in evaluating the benefits provided by\\nthe Settlement Agreement’s injunctive and monetary relief. We reject the Objectors’ contention\\nthat the credits available through the secondary pool function as coupons that cannot be counted\\ntoward the total value of the Settlement Agreement under the Class Action Fairness Act. See\\n28 U.S.C. § 1712. The Objectors’ main support for that proposition, In re Easysaver Rewards\\nLitig., 906 F.3d 747 (9th Cir. 2018), is readily distinguishable. In contrast with coupon\\nsettlements that require an individual to buy a product or service before receiving the promised\\nbenefits, id. at 755, the secondary pool does not require class members to “hand over more of\\ntheir own money” to be eligible to redeem the benefits of the Settlement Agreement in this case;\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 11\\n\\n\\nhere, the cash pool offers an alternative form of relief to dancers who prefer to cut ties with Déjà\\nVu. Because the Dancers can choose to receive compensation from the cash pool regardless of\\nwhether they continued working at Déjà Vu, the Settlement Agreement cannot be understood to\\nrequire the Dancers to “reengag[e] in the same . . . activity that they believe led to their injury.”\\nId. at 757.\\n\\n When compared against the risks involved in litigating or arbitrating the Dancers’ claims,\\nthe value of the Settlement Agreement is significant. The injunctive relief mandates extensive\\nchanges to Déjà Vu’s business practices, and both the $1 million cash pool and the $4.5 million\\nsecondary pool are available to provide financial compensation to the Dancers in the form that\\nbest suits each individual dancer’s circumstances. We find that the district court did not abuse its\\ndiscretion in finding that the tangible benefits afforded to class members as a result of the\\nSettlement Agreement outweigh the value of the volatile claims that the Dancers released.\\n\\n 2. Remaining UAW Factors\\n\\n UAW also instructs courts to consider the risk of fraud or collusion. UAW, 497 F.3d at\\n631. The Objectors argue that the Settlement Agreement promotes collusion between the\\nDancers’ counsel and Déjà Vu’s counsel. Specifically, the Objectors take issue with the\\nSettlement Agreement’s “clear-sailing clause,” which provides that Déjà Vu “agree[s] not to\\nobject to a request” for up to $900,000 of direct attorneys’ fees and up to $300,000 of indirect\\nattorneys’ fees. (Settlement Agreement, R. 41-2, PageID 1173.) The Objectors argue that the\\n“attorneys’ fees sought by Class Counsel . . . dwarf[] the recovery of the Class.” (C.T. Br. 29.)\\nThe district court correctly rejected this argument. “Not every ‘clear sailing provision’\\ndemonstrates collusion.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 426 (6th Cir. 2012).\\nAdditionally, the fee award is not disproportionate to the recovery of the class. On one hand,\\nassuming that the Dancers fully deplete the secondary pool and class counsel receive the full\\namount of indirect fees, the attorneys’ fees would represent only 23% of the total settlement\\naward, even without including the value of injunctive relief. On the other hand, assuming that\\nnot a single dancer opts into the secondary pool, the $900,000 in attorneys’ fees would represent\\nonly 20% of the combined value of the cash pool and the district court’s approximation of the\\nvalue of the injunctive relief. It is not abnormal for negotiated attorneys’ fee awards to comprise\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 12\\n\\n\\n20% to 30% of the total award. See Waters v. Intern. Precious Metal Corp., 190 F.3d 1291,\\n1294 (11th Cir. 1999); Gooch, 672 F.3d at 426. Accordingly, the district court did not abuse its\\ndiscretion in finding that this factor weighs in favor of approval.\\n\\n Another UAW factor is the complexity, expense, and likely duration of the litigation.\\n497 F.3d at 631. The district court noted that “[t]his case presents complex legal issues because\\nit combines a Rule 23 class action with a FLSA collective action.” (Op. & Order, R. 77, PageID\\n4214.) Indeed, the Cin-Lan settlement illustrates the complexity of an FLSA class action claim\\ninvolving exotic dancers. There, plaintiffs litigated against defendants for three years and\\nengaged in extensive discovery and motion practice before entering into a final settlement\\nagreement. In contrast, the Settlement Agreement in this case conserves judicial resources by\\nconsolidating eight other lawsuits and administrative proceedings into the present Settlement\\nAgreement. The district court did not abuse its discretion in finding that this factor cuts in favor\\nof approving the Settlement Agreement.\\n\\n The next UAW factor is the amount of discovery engaged in by the parties as a factor in\\napproving settlements. 497 F.3d at 631. The Objectors argue that the district court abused its\\ndiscretion by approving the settlement without requiring the parties to engage in discovery,\\nwhich led to class counsel undervaluing the class’s claims and creating a financial windfall for\\nclass counsel. But courts have held that settlements are permissible where, “notwithstanding the\\nstatus of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the\\nfacts of their case.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir.\\n1981). The Cin-Lan case, which involved extensive discovery, provided the Dancers’ counsel\\nwith a vehicle to obtain the necessary information. This case involves the same counsel\\nlitigating similar claims on behalf of many of the same dancers against one of the same\\ndefendants. As the district court found, the parties in this case “made a sufficient showing of\\ninformal discovery based on their efforts in Cin-Lan, when [the same class counsel] served\\n13 interrogatories and 87 requests for production on each of the three [D]efendants, took\\n13 depositions of Defendants’ officers and managers, and filed numerous subpoenas on third\\nparties.” (Op. & Order, R. 77, PageID 4214.) Because of the substantial overlap between the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 13\\n\\n\\ntwo cases, the district court did not abuse its discretion in finding that the parties’ informal\\ndiscovery from Cin-Lan was sufficient.\\n\\n Two UAW factors focus on the class’s response to the proposed settlement: courts are\\nrequired to consider the opinions of class counsel and class representatives, as well as the\\nreactions of absent class members. 497 F.3d at 631. Jane Doe 1, the named representative, is\\nnot among the Objectors in this case—she has a favorable view of the settlement. And both Déjà\\nVu and the Dancers agreed that the counsel representing both parties had extensive experience,\\nwhich supports the district court’s finding that counsels’ positive outlook toward the fairness of\\nthe settlement weighed in favor of approving the Settlement Agreement. The settlement\\nagreement has also received a relatively positive response from absent class members. The class\\nconsists of 28,177 current and former dancers. Of those, 24,575 notices were delivered, which\\namounts to nearly 88% of the class. And of the dancers that received notices, by the time the\\ncourt held its fairness hearing, 19% of the class—or 4,623 dancers—opted-in to the settlement,\\nwhich exceeded the parties’ expected 15% opt-in rate. In contrast, only 66 dancers opted-out of\\nthe settlement, or 0.2%, and there were only six objectors to the settlement, or 0.02%. The\\nObjectors’ only challenge to these two factors is their contention that the district court afforded\\ntoo much deference to counsel. But the court expressly acknowledged that counsel’s opinions\\nwere “by no means dispositive.” (Op. & Order, R. 77, PageID 4215.) Thus, the district court did\\nnot abuse its discretion in finding that the level of support and participation from the class\\nsupported approval of the Settlement Agreement.\\n\\n The final UAW factor is the public interest. 497 F.3d at 631. Courts have held that “there\\nis a strong public interest in encouraging settlement of complex litigation and class action suits\\nbecause they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial\\nresources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003). At the\\nsame time, courts have also found that the enforcing the FLSA furthers an important interest in\\n“encouraging employees and others to ensure that employers comply with laws governing\\nemployment.” Levan v. Sears, Roebuck & Co., 984 F. Supp. 2d 855, 871 (E.D. Tenn. 2013).\\nThe district court concluded that this Settlement Agreement achieves both purposes: the\\nsettlement “puts an end to ‘potentially long and protracted litigation,’” and it also “mandates\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 14\\n\\n\\nlong-term structural changes to Defendants’ business practices designed to ensure workers are\\naccurately classified and employees receive appropriate wages and legal protections.” (Op.\\n& Order, R. 77, PageID 4216.) We agree. Therefore, the district court did not abuse its\\ndiscretion in finding that this factor weighed in favor of approving the Settlement Agreement as\\nwell.\\n\\n B. Rule 23 Procedural Requirements\\n\\n The Objectors also argue that the settlement violates the procedural requirements of\\nFederal Rule of Civil Procedure 23, because the class release is impermissibly broad and the\\nclass notice failed to adequately apprise the class members of their rights. We address each\\nargument in turn.\\n\\n 1. Breadth of Class Release\\n\\n The Settlement Agreement defines the “Settlement Class Members’ Released Claims” as\\n“all Claims asserted in the Action, or to be asserted in the Action by way of the amendment\\ncontemplated in this Agreement, and any and all Claims of any conceivable kind or nature\\nwhatsoever that are based on such pleadings or that are reasonably related thereto (except only\\nfor those under the FLSA).” (Settlement Agreement, R. 41-2, PageID 1160.) The Settlement\\nAgreement goes on to list ten categories of state law claims it specifically includes within this\\ndefinition, including employment, wage, and labor claims against Déjà Vu. The Objectors claim\\nthat a class release of this breadth cannot satisfy the “identical factual predicate doctrine”\\noutlined by the Second Circuit in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., which limits class\\nreleases to “claims that share the same integral facts as settled claims, provided that the released\\nclaims are adequately represented prior to settlement.” 396 F.3d 96, 106 (2d Cir. 2005). As with\\nthe remainder of the district court’s approval of the Settlement Agreement, we review the district\\ncourt’s determination on this issue for abuse of discretion. Moulton v. U.S. Steel Corp., 581 F.3d\\n344, 349 (6th Cir. 2009).\\n\\n This court has held that “the question is not whether the definition of the claim in the\\ncomplaint and the definition of the claim in the release overlap perfectly; it is whether the\\nreleased claims share a ‘factual predicate’ with the claims pled in the complaint.” Moulton,\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 15\\n\\n\\n581 F.3d at 349 (internal citations omitted). The claims released in the Settlement Agreement\\nshare that factual predicate, as the release specifically cabins the categories of relinquished\\nclaims to those “based upon” or “reasonably related” to the pleadings and claims asserted in the\\nSettlement Agreement. Therefore, the Objectors’ argument that the release covers claims\\n“completely unrelated to the lawsuit” lacks merit. (Cabrera Br. 54 (emphasis in original).)\\n\\n 2. Adequacy of Notice to Class Members\\n\\n Finally, the Objectors claim that the class notice was inadequate to apprise the class\\nmembers of their rights. Rule 23(c)(2)(b) requires the class to provide notice of the nature of the\\naction; the definition of the class certified; the class claims, issues, or defenses; information on\\nhow a class member can enter an appearance with their lawyer; information on how class\\nmembers can opt into or out of the settlement; and the binding effect of the settlement\\nagreement. Additionally, we have held that “due process requires that notice to the class be\\nreasonably calculated, under all the circumstances, to apprise interested parties of the pendency\\nof the action and afford them an opportunity to present their objections.” Vassalle v. Midland\\nFunding LLC, 708 F.3d 747, 759 (6th Cir. 2013). We review the adequacy of class notice de\\nnovo. Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).\\n\\n The notice that the Dancers provided to the class covered all of the bases set out in Rule\\n23(c)(2)(b). Still, the Objectors advance several arguments for why the notice failed to comport\\nwith the due process requirements outlined above.\\n\\n First, the Objectors contend that the notice mischaracterized the scope of the release.\\nThis argument fails. The notice stated that, by staying in the class, a dancer would “give up [the]\\nright to sue Deja Vu . . . on any state law claims later,” and that all class members “will have\\nreleased all Defendants, including all of the Deja Vu–Affiliated Nightclubs, from any further\\nclaims related to the matters raised in this lawsuit” such that class members “cannot ever sue\\nany of the Defendants about these issues based upon conduct that occurred prior to the Effective\\nDate of the settlement.” (Notice of Settlement, R. 37-1, PageID 1036, 1041–42.) The class\\nnotice accurately captured the scope of the release. See supra at 14.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 16\\n\\n\\n Second, the Objectors argue that the notice provided was unclear with respect to how the\\nsettlement would be split among the Dancers. But the Objectors cite no authority that requires a\\nnotice to state how much money each class member would receive, nor do they explain how the\\nnotice could have accurately stated the amount each dancer was eligible to receive from the cash\\npool before knowing the total number of dancers who opted to participate in the cash pool. The\\nnotice appropriately details the two forms of monetary relief, including the total cash pool\\namount and the structure and value of the secondary pool credits, which is reasonable under the\\ncircumstances.\\n\\n Third, the Objectors claim that the notice was deficient because it failed to list “the 10\\nprior-filed class and collective actions against some of these clubs in which class members could\\nhave pursued their claims as an alternative to joining this action.” (Cabrera Br. 55.) For support,\\nthe Objectors point to Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a case in\\nwhich the Objectors claim that the Seventh Circuit reversed the approval of a settlement because\\nof a failure to inform class members of a pending state case. But the Objectors oversell the\\nholding in Mirfasihi, which was rooted in the fact that many class members could have recovered\\nin the pending cases but were entitled to absolutely no recovery in the action in question. See id.\\nat 785. The Seventh Circuit expressly stated that, in other contexts, notice of pending suits is not\\na “requirement[] of an acceptable settlement.” Id. Here, where the Settlement Agreement\\nprovides some monetary relief to every class member and compels Déjà Vu to change its\\nbusiness practices through injunctive relief, failure to provide notice of other pending suits does\\nnot render the class notice unreasonable. For those reasons, the notice comports with the\\nrequirements of due process.\\n\\n III.\\n\\n We affirm the judgment of the district court.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 17\\n\\n\\n _________________\\n\\n OPINION\\n _________________\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4403226/\", \"author_raw\": \"COLE, Chief Judge\"}, {\"author\": \"HELENE N. WHITE, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"HELENE N. WHITE, Circuit Judge, dissenting in part.\\n\\n I agree with the majority except with regard to the coupon and attorney fee issues.\\nBecause I conclude that the secondary-pool credits are coupons under the Class Action Fairness\\nAct (CAFA), I dissent from the majority’s approval of the attorney fee provision of the\\nsettlement agreement, and would remand to the district court for reconsideration of the fee award\\nconsistent with CAFA.\\n\\n CAFA regulates attorneys’ fee awards for class-action settlements that provide relief to\\nclass members in the form of coupons. 28 U.S.C. § 1712. Coupon settlements deserve\\nadditional judicial scrutiny because of the myriad problems they present: coupon-redemption\\nrates are often low, so coupon settlements do not provide meaningful compensation to many\\nclass members; coupon settlements may not disgorge ill-gotten gains from defendants because a\\ndefendant suffers no loss from unredeemed coupons; and coupon settlements may require class\\nmembers to continue engaging in business with the defendant in order to obtain relief. See\\nChristopher R. Leslie, The Need to Study Coupon Settlements in Class Action Litigation, 18 Geo.\\nJ. Legal Ethics 1395, 1396–97 (2005). To mitigate the risk of class counsel inflating settlement\\nvaluations—and thus attorney fees—with illusory coupon relief, CAFA provides:\\n\\n If a proposed settlement in a class action provides for a recovery of coupons to a\\n class member, the portion of any attorney’s fee award to class counsel that is\\n attributable to the award of the coupons shall be based on the value to class\\n members of the coupons that are redeemed.\\n\\n28 U.S.C. § 1712(a). By mandating that fee awards be calculated based on the value of\\nredeemed coupons, CAFA “ensures that class counsel benefit only from coupons that provide\\nactual relief to the class, lessening the incentive to seek an award of coupons that class members\\nhave little interest in using.” In re Easysaver Rewards Litig., 906 F.3d 747, 755 (9th Cir. 2018)\\n(citation omitted).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 18\\n\\n\\n CAFA does not define “coupon,” however. As a result, courts have sought to give\\nmeaning to the term, “informed by § 1712’s animating purpose of preventing settlements that\\naward excessive fees while leaving class members with ‘nothing more than promotional coupons\\nto purchase more products from the defendants.’” In re Easysaver, 906 F.3d at 755 (quoting In\\nre Online DVD-Rental Antitrust Litig., 779 F.3d 934, 950 (9th Cir. 2015)). This court has not\\naddressed § 1712 or the definition of “coupon” at length, but the Ninth Circuit has enumerated\\nthree factors that distinguish coupon settlements from non-coupon settlements: “(1) whether\\nclass members have to hand over more of their own money before they can take advantage of a\\ncredit, (2) whether the credit is valid only for select products or services, and (3) how much\\nflexibility the credit provides, including whether it expires or is freely transferrable.” Id.\\n(citation and internal quotation marks omitted). Other courts have considered similar criteria in\\nevaluating whether a settlement provides for coupon relief.1 These cases provide guidance and\\nsupport that the rent-credit and dance-fee payments in this settlement are coupons.\\n\\n First, by requiring a class member to work at a Déjà Vu club to receive any benefit from\\nthe secondary pool, the settlement forces class members to continue doing business with\\nDefendants. For clubs that charge rent to the dancers they employ, the secondary pool gives a\\nclass member a 60% discount on her nightly rent, but the class member remits the remaining\\n40% to Defendants. For all other clubs, a dance-fee credit provides, in effect, a $100 reduction\\nin the dance fees collected by the club for that day. In either case, a class member has to spend\\ntime that she could devote to other endeavors—and in essence, “hand over more of [her] own\\nmoney” to Defendants—to take advantage of the settlement. In re Easysaver, 906 F.3d at 757\\n(citation omitted). See also In re Sw. Airlines Voucher Litig., 799 F.3d 701, 706 (7th Cir. 2015)\\n(“The potential for abuse is greatest when the coupons have value only if a class member is\\n\\n 1See Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 654 (7th Cir. 2006) (describing pre-\\npaid envelopes as “a form of in-kind compensation that shares some characteristics of coupons, including forced\\nfuture business with the defendant and . . . the likelihood that the full amount of [Defendant’s] gains will not be\\ndisgorged”); Reibstein v. Rite Aid Corp., 761 F.Supp.2d 241, 255–56 (E.D. Pa. 2011) (concluding that gift cards are\\nnot coupons because they “have actual cash value,” “have no expiration date, are freely transferrable, and can be\\nused for literally thousands of products for which ordinary consumers, including class members, have need”);\\nRadosti v. Envision EMI, LLC, 717 F.Supp.2d 37, 54 n.16 (D.D.C. 2010) (“Although Congress did not define the\\nterm ‘coupon’ in the statute, courts have generally considered a coupon settlement to be one that provides benefits to\\nclass members in the form of a discount towards the future purchase of a product or service offered by the\\ndefendant.”).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 19\\n\\n\\nwilling to do business again with the defendant who has injured her in some way”). And, credits\\nmay be redeemed only by a class member at the club where she works, so the secondary pool is\\nof no value to former dancers unless they return to work.\\n\\n Second, the credits are only available for specific “products or services.” That is,\\ndepending on the business model of the Déjà Vu club in which she works, a class member may\\nredeem a secondary-pool credit only for dance fees or for a 60% credit to her rent. The\\nsecondary-pool credits are therefore similar to the types of coupon settlements criticized in the\\nSenate Judiciary Committee’s Report: a “$1 off every subsequent $5 purchase,” “a 30 percent\\ndiscount on selected products,” or $55 to use toward a purchase of a new crib from a crib\\nproducer accused of making defective cribs. S. Rep. No. 109–14, at 15–17 (2005).\\n\\n Third, the settlement agreement imposes severe restrictions on the redemption of the\\nsecondary-pool credits. The credit pool is only available for a year, and the unclaimed funds in\\nthe secondary pool revert to Defendants at the end of the year. See In re Easysaver, 906 F.3d at\\n757 (credits that “expire one year after issuance” and “cannot be used in anywhere near the same\\nway as cash” are coupons). The class member must notify the club seven days in advance that\\nshe wishes to redeem a rent credit or dance-fee payment; clubs are not required to permit more\\nthan five class members per day to redeem credits; and class members are selected on a first-\\ncome, first-served basis. A class member is limited to a maximum of $100 per day through the\\nsecondary pool. The settlement also establishes limits on possible recovery based on the length\\nof time a class member has worked: a class member who has worked for one month may receive\\na maximum of $200.00 from the pool; for between six and eighteen months, a maximum of\\n$1,000; for more than eighteen months, a maximum of $2,000. In short, the secondary-pool\\ncredits are much less flexible than the gift cards and vouchers found to fall outside CAFA’s\\nreach. See In re Online DVD, 779 F.3d at 951 (collecting cases).\\n\\n Finally, the parties have not supplied any information suggesting a likely redemption rate\\nfor the secondary-pool credits, and it seems probable that at least some of the secondary-pool\\ncredits will go unredeemed. Thus, there exists a “likelihood that the full amount of [Defendant’s]\\ngains will not be disgorged.” Synfuel Techs., 463 F.3d at 654. Accordingly, I conclude that the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 20\\n\\n\\nsecondary-pool credits are coupons for the purposes of CAFA, and the settlement is subject to\\n§ 1712’s attorney-fee requirements.\\n\\n When a class-action settlement provides for coupon relief, either in whole or in part,\\nCAFA requires that any attorneys’ fee award “that is attributable to the award of coupons” be\\ncalculated using the value to the class of the coupons redeemed. 28 U.S.C. § 1712(a). In this\\ncase, the district court approved the fee award established in the settlement agreement based on a\\n$6.55 million estimated total settlement value, $4.5 million of which represents the face value of\\nthe rent-credit and dance-fee payments available through the secondary pool. In a “mixed”\\nsettlement such as this, which “provides for an award of coupons to class members and also\\nprovides for equitable relief, including injunctive relief,” CAFA mandates that the attorney fee\\nrelated to the coupon relief be based on the value of the coupons actually redeemed, and the part\\nof the attorney fee not based on the coupon recovery be based on the “amount of time class\\ncounsel reasonably expended working on the action.” 28 U.S.C. § 1712(a)–(c). As the Ninth\\nCircuit explained:\\n\\n The practical effect of § 1712(c) is that the district court must perform two\\n separate calculations to fully compensate class counsel. First, under subsection\\n (a), the court must determine a reasonable contingency fee based on the actual\\n redemption value of the coupons awarded. Second, under subsection (b), the\\n court must determine a reasonable lodestar amount to compensate class counsel\\n for any non-coupon relief obtained.\\n\\nIn re HP Inkjet Printer Litig., 716 F.3d 1173, 1184–85 (9th Cir. 2013).\\n\\n In this case, the district court erred by failing to calculate the redemption value of the\\ncoupons prior to approving the attorney fee award. The proposed settlement agreement provides\\nthat Defendants agreed to pay $900,000 in direct attorney fees and, contingent on payments\\ntaken from the secondary fund, up to $300,000 in indirect attorney fees. The district court found\\nthat because the overall settlement “creates a common fund worth at least $6.55 million,” the\\n$1.2 million attorney award was reasonable. (R. 77, PID 4217–18.) In evaluating the value of\\nthis common fund, however, the district court accepted at face value the secondary pool, finding\\nthat “the parties have made a sufficient showing that the secondary pool of rent-credit and dance-\\nfee payments will give actual value to the class.” (R. 77, PID 4218.) Setting aside the fact that\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 21\\n\\n\\nthe parties made no such showing,2 the district court’s conclusion was contrary to CAFA, which\\nplainly states that the fee award for a coupon settlement “shall be based on the value to class\\nmembers of the coupons that are redeemed.” 28 U.S.C. § 1712(a). As the Seventh Circuit has\\nnoted, § 1712(a) protects against abusive settlements by requiring that “any percentage-of-\\nrecovery award in a coupon settlement be based upon a percentage of the value of the coupons\\nactually redeemed by class members, not the nominal value of the coupons merely available to\\nthe class.” In re Sw. Airlines, 799 F.3d at 708.3\\n\\n Nor is the fee award saved by the fact that the district court cross-checked the fee against\\nthe lodestar, because the district court’s ultimate calculation assumed the $6.55 million total\\nsettlement value. The district court reviewed the attorneys’ billings, subtracted unsupported fee\\nsubmissions, and calculated a total of $843,389.03 in fees for 1555.63 hours. The district court\\nthen found that “[t]he lodestar multiplier of 1.4, and the blended hourly rate of $542 are\\nreasonable given the complexity of the case, the results achieved, and considering that Plaintiffs’\\ncounsel will continue to accumulate fees while they represent the class during the administration\\nof the settlement.” (R. 77, PID 4220.) In so reasoning, the district court “reverse-engineered” a\\nmultiplier to match the lodestar fee with the fee established in the settlement agreement. In re\\nEasysaver, 906 F.3d at 759. As in In re Easysaver, the lodestar figure “lost [its] independence\\nwhen the district court used a multiplier to match the lodestar fee to the percentage-of-recovery\\nfee—which was, by definition, a percentage of the full value of the settlement, including the face\\nvalue of the coupons.” Id. The value of the secondary-pool coupons thus impermissibly\\ninformed the district court’s calculation of the lodestar.\\n\\n 2The record and the briefing in this case make clear that there is no readily available information regarding\\nlikely redemption rates. The settlement agreement in Cin-Lan contained a similar secondary credit pool, but the\\ndefendants and plaintiffs’ counsel failed to collect information regarding the actual redemption of those credits\\n(despite the settlement agreement specifically requiring them to do so). As a result, the parties here do not have the\\nresults of that process to inform the fee award in this case. As class counsel stated at the fairness hearing, “We don’t\\nknow . . . how many people are going to use the rent credits once they make that election.” (R. 105, PID 4511.)\\n 3I recognize that the attorneys’ fee award does not award counsel a full one-third of the face settlement\\namount of $6.4 million. Instead, counsel receives close to half of the cash settlement and is capped at 6.6% of the\\nsecondary pool. I also recognize that the settlement provides for injunctive relief that the district court found\\nprovided value to the class. But without determining the real value of the secondary pool, it is impossible to\\n“ensure[] that class counsel benefit only from coupons that provide actual relief to the class.” In re Easysaver,\\n906 F.3d at 755. Stated differently, one may ask whether the $900,000 cash fee award would be appropriate if only\\n10% of the secondary pool is actually redeemed.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 22\\n\\n\\n Finally, the majority states that even if the secondary pool is considered worthless, the\\ninjunctive relief provided through the settlement increases the overall value to the class by\\napproximately $3.4 million, and therefore the $900,000 cash fee award would not be\\nunreasonable. The injunctive relief may ultimately support the award, but the existing record\\nprovides insufficient support for the $3.4 million valuation. Although the district court accepted\\nas “unrebutted” Defendants’ $3.4 million estimate, the record indicates that Objectors raised\\nsignificant concerns about the reliability of the underlying data and whether any change in\\nDefendants’ clubs’ procedures was actually achieved through the settlement. Specifically,\\nObjectors asserted that Defendants’ projections overestimated the number of current dancers\\nwho would choose to become employees, thereby inflating the value of the injunctive relief. The\\ndistrict court did not address either objection, presumably because it found that the secondary\\npool sufficiently supported the fee award. And a close look at Defendants’ value calculations\\nreveals potentially dubious assumptions. For example, Defendants’ calculations assume that\\ndancers who take advantage of the injunctive relief and convert to employee status would earn\\n$173 more per shift than dancers who continue to work as independent contractors. This\\nincrease in pay is based on the questionable proposition that an employee dancer would generate\\ndouble the dance revenue that an independent contractor would. Defendants’ report provided no\\ndata to support this proposition.\\n\\n But even accepting the Defendants’ estimate of the value of the injunctive relief, the\\ndistrict court clearly found that the secondary pool provided at least some benefit to the class,\\nand evaluated the fee award on that basis. As explained above, CAFA requires the district court\\nto base its determination on the actual value of the coupons redeemed, not on speculation.\\n\\n For these reasons, I would vacate the approval of the attorneys’ fee award and remand for\\nrecalculation of the fee award consistent with CAFA.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4403226/\", \"author_raw\": \"HELENE N. WHITE, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"COLE"},"judge2":{"kind":"string","value":"WHITE"},"judge3":{"kind":"string","value":"NALBANDIAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"COLE\": \", Chief\", \"WHITE\": \", Circuit\", \"NALBANDIAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625973/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jane Doe v. Deja Vu Consulting, Inc.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-03\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0113p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n JANE DOES 1–2, ┐\n Plaintiffs-Appellees, │\n │\n │\n EVA CABRERA and BRITTNEY HALVERSON (17-1801); │\n B.D. (17-1802); C.T. (17-1827), > Nos. 17-1801/1802/1827\n Objectors-Appellants. │\n │\n │\n v. │\n │\n DÉJÀ VU CONSULTING, INC., dba Déjà Vu of Saginaw, │\n Inc., nka Déjà Vu Services, Inc., et al., │\n │\n │\n Defendants-Appellees. │\n ┘\n\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:16-cv-10877—Stephen J. Murphy, III, District Judge.\n\n Argued: October 17, 2018\n\n Decided and Filed: June 3, 2019\n\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Harold L. Lichten, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for\nall Appellants. Jason J. Thompson, SOMERS SCHWARTZ, P.C., Southfield, Michigan, for\nJane Doe Appellees. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan,\nfor Déjà Vu Appellees. ON BRIEF: Harold L. Lichten, Shannon Liss-Riordan, Matthew\nThomson, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for Appellants in 17-\n1801. Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,\nMichigan, for Déjà Vu Appellees. Charles P. Yezbak, III, Daniel Eduardo Arciniegas, YEZBAK\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 2\n\n\nLAW OFFICES, Nashville, Tennessee, for Appellant in 17-1802. W. Allen McDonald, LACY,\nPRICE & WAGNER, P.C., Knoxville, Tennessee, for Appellant in 17-1827. Beth M. Rivers,\nPITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Jane Doe Appellees.\n\n COLE, C.J., delivered the opinion of the court in which NALBANDIAN, J., joined, and\nWHITE, J., joined in part. WHITE, J. (pp. 17–22), delivered a separate opinion dissenting in\npart.\n _________________\n\n OPINION\n _________________\n\n COLE, Chief Judge. After a class of 28,177 exotic dancers alleged that Déjà Vu dance\nclubs violated the Fair Labor Standards Act and state wage-and-hour laws, Déjà Vu and the class\nof dancers entered into a settlement agreement. The district court approved the settlement over\nthe objections of four class members who now appeal, arguing that the settlement was\nfundamentally unfair and failed to comport with procedural requirements for class action\nsettlements. Because the district court did not abuse its discretion in approving the settlement,\nwe affirm.\n\n I.\n\n This class of dancers was not the first to sue Déjà Vu for alleged Fair Labor Standards\nAct (“FLSA”) and state law violations. In 2008, a class of dancers filed a class action lawsuit in\nthe Eastern District of Michigan, alleging that two dance clubs—Cin-Lan, Inc., and Déjà Vu\nConsulting, Inc.—misclassified them as non-employees or independent contractors in violation\nof the FLSA and the Michigan Minimum Wage Act. Over the next three years, the parties\nengaged in extensive discovery and motion practice. After more than six months of negotiations,\nthey entered into a settlement agreement that provided the dancers monetary compensation and\ninjunctive relief. The district court approved the settlement (“Cin-Lan Settlement”) and retained\njurisdiction to ensure its enforcement. Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2011 WL\n13266312 (E.D. Mich. July 15, 2011).\n\n On March 10, 2016—five years after the approval of the Cin-Lan Settlement—another\ndancer (“Jane Doe 1”) filed a complaint against Déjà Vu Consulting, its affiliate dance clubs, and\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 3\n\n\nits owner Harry Mohney (collectively, “Déjà Vu”) in the Eastern District of Michigan. Jane Doe\n1 filed the complaint as both a class action under Federal Rule of Civil Procedure 23 and a\ncollective action under 29 U.S.C. § 216(b) of the FLSA, seeking to bring the action on behalf of\nherself and “[a]ll exotic dancers who worked for Defendants and were misclassified by\nDefendants as independent contractors at any time in the past three years” (collectively, “the\nDancers”). (Compl., R. 1, PageID 24–25 (italics in original).) This lawsuit involves the same\nclass counsel, many of the same dancers, one of the same defendants, and similar claims as the\ninitial Cin-Lan dispute. Specifically, the Dancers allege that Déjà Vu’s clubs violated the FLSA\nand state wage-and-hour laws by “intentionally misclassif[ying] class members as independent\ncontractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split\ngratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.”\n(Op. & Order, R. 77, PageID 4200.)1\n\n Déjà Vu filed a motion to dismiss or stay proceedings in favor of arbitration on\nSeptember 16, 2016, and it attached a copy of Jane Doe 1’s Dancer Performance Lease\nagreement, which included a clause mandating binding individual arbitration for all claims\narising out of her performances.\n\n Before the district court made any rulings on the merits, the parties began negotiating a\nsettlement agreement. On December 28, 2016, the Dancers’ attorneys notified the court that they\nhad “executed a tentative term sheet on a settlement.” (Mot. to Transfer Case, R. 22, PageID\n445.) Additionally, the Dancers filed a motion requesting an intra-district transfer of the case to\nthe same judge who retained jurisdiction over the Cin-Lan settlement, both because the case\ninvokes his continuing jurisdiction and because he was “intimately familiar with the facts and\ncircumstances of the parties’ dispute after presiding over the prior case for approximately four\nyears.” (Id. at PageID 446.) On January 4, 2017, the district court granted the motion to\ntransfer.\n\n\n\n\n 1Although the Cin-Lan case involved similar allegations, the Cin-Lan settlement did not mandate that the\nclubs convert the dancers from independent contractors to employees.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 4\n\n\n After negotiation, the parties reached a settlement agreement (“Settlement Agreement”).\nIn exchange for releasing their claims against Déjà Vu, the Settlement Agreement provides the\nDancers with injunctive and monetary relief.\n\n The injunctive relief is structured around the Settlement Agreement’s requirement that\nevery club provide its current dancers with an Entertainer Assessment Form. This assessment\ndetermines whether the dancer should be classified as an employee or an Independent\nProfessional Entertainer (“IPE”), the latter of which is akin to an independent contractor. The\nSettlement Agreement requires dancers to complete the assessment before they can perform at\nany of Déjà Vu’s clubs. The assessment must then be verified by the club’s Certified Public\nAccountant.\n\n The remaining injunctive relief turns on whether the assessment determines the dancer in\nquestion is an employee or an IPE. Under the Settlement Agreement, employees may be\nrequired to tip-out or tip-pool with the club’s other employees, but they must be paid minimum\nwage (or, where available, at the tip-credited wage). Employees will also be entitled to\ncommissions of at least 20% of their dance fees that exceed the cost of employment, as well as\n20% commissions of their sale of ‘conversation beverages,’ which are drinks that dancers\npersuade customers to buy for them. Employees will be reimbursed by the club for all license\nand permit fees required to perform at the club, and the club will provide them with two logo\ncostumes per month to wear while working. In contrast, the Settlement Agreement prevents\nDéjà Vu from imposing any work schedule upon IPEs or requiring IPEs to tip-out or tip-pool\nwith any employee. IPEs also cannot be required to wear any costume. Finally, IPEs will have\nthe right to vote in each club’s annual IPE meeting to change or modify any club policy that\naffects IPEs, which ensures that they have sufficient control over the clubs’ operations to prevent\nDéjà Vu from exerting employer-employee control over IPEs.\n\n With respect to monetary relief, the Settlement Agreement divides a total award of $6.55\nmillion into three primary categories: $1 million toward the Net Cash Payment Settlement Fund\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 5\n\n\n(“the cash pool”), $4.5 million toward Secondary Pool Remuneration (“the secondary pool”),\nand $900,000 in attorneys’ fees.2\n\n The first two categories serve as alternative forms of monetary relief for the class\nmembers. The first option is to receive a one-time payment from the cash pool. The $1 million\ncash pool includes $30,000 in Enhancement Payments for the named plaintiffs and $50,000 to\npay defendants’ Administration Costs. After subtracting these costs, the total cash pool to be\nsplit between all of the Dancers who elect to receive a one-time direct payment is $920,000.\nCash pool funds will be allocated on a point-based system that favors dancers who worked for\nthe clubs for a longer period of time, as well as dancers who worked more recently at Déjà Vu’s\nclubs.\n\n The second option is to collect settlement funds from the secondary pool in the form of\ncredits that can be used at Déjà Vu clubs. This is the default form of relief for Dancers who do\nnot opt into the cash pool: each time a class member performs at one of Déjà Vu’s clubs, credits\nfrom the secondary pool will either cover 60% of her daily rent at the club or allow her to collect\nup to $100 in dance fees. Depending on how many months the dancer has performed at the Déjà\nVu club where she collects the credits, the total amount of money she can recuperate from the\nsecondary pool is capped at $200, $1,000, or $2,000.\n\n Finally, the Settlement Agreement provides compensation for the Dancers’ attorneys.\nUnder the Settlement Agreement, Déjà Vu agrees not to oppose an award of up to $900,000 in\ndirect attorneys’ fees. Déjà Vu also agrees not to oppose an award of up to $300,000 in indirect\nattorneys’ fees to be paid out of the Dancers’ secondary pool. The Settlement Agreement\nestablishes that the indirect fees are to be calculated based on 33.3% of the value of the redeemed\nportion of the secondary pool. These indirect fees are designed to encourage the Dancers’\ncounsel to try and shore up as much participation as possible in the secondary pool by creating a\n“direct financial incentive” for their work. (Déjà Vu Br. 64 (italics in original).)\n\n\n\n\n 2The Settlement Agreement also allocates $100,000 to resolve all Private Attorneys General Act claims\nagainst its clubs in California.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 6\n\n\n On June 19, 2017, the district court approved the Settlement Agreement. In finding that\nthe parties satisfied their burden to show that the Settlement Agreement was fair, the district\ncourt turned to International Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631\n(6th Cir. 2007) (“UAW”), which established a set of factors to determine the fairness of class\naction settlements. In particular, the court stressed the first factor—the comparison between the\nrelief offered in the Settlement Agreement and the Dancers’ likelihood of success on the merits\nagainst Déjà Vu. The court emphasized the “high risk of continued litigation and the uncertain\nlikelihood of success on the merits” for the Dancers, finding that without the Settlement\nAgreement, “the vast majority of class members would recover nothing.” (Op. & Order, R. 77,\nPageID 4212, 4221.) The court also found that the Settlement Agreement “offers value to the\nclass in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to\nDefendants’ business practices, all of which directly benefit class members.” (Id. at PageID\n4212.) After analyzing the remaining UAW factors, the court concluded that the Settlement\nAgreement “is the result of a bona-fide dispute, and the terms established in the settlement are a\nfair, reasonable, and adequate resolution of the claims.” (Id. at PageID 4216.)\n\n Four members of the class—Eva Cabrera, Brittney Halverson, B.D., and C.T.\n(collectively, “the Objectors”)—objected to the settlement. The district court overruled their\nobjections, and they now appeal the approval of the Settlement Agreement. The Objectors’\narguments fall into two broad categories. First, the Objectors argue that the district court abused\nits discretion by failing to properly apply the factors that ensure the fairness of settlement\nagreements, especially with respect to the district court’s attempt to calculate the value of the\nDancers’ claims. Second, the Objectors argue that the settlement violates the procedural\nrequirements of Federal Rule of Civil Procedure 23, given the breadth of the class release and the\nnotice afforded to the unnamed class members.\n\n II.\n\n We review a district court’s approval of a class action settlement for abuse of discretion.\nIn re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013).\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 7\n\n\n A. UAW Fairness Factors\n\n In UAW, we established a seven-factor test to assess whether or not a class action\nsettlement is “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e).\n497 F.3d at 631. Those factors include: (1) the “risk of fraud or collusion,” (2) the “complexity,\nexpense and likely duration of the litigation,” (3) the “amount of discovery engaged in by the\nparties,” (4) the “likelihood of success on the merits,” (5) the “opinions of class counsel and class\nrepresentatives,” (6) the “reaction of absent class members,” and (7) the “public interest.” Id.\n\n Of the UAW factors, “[t]he most important of the factors to be considered in reviewing a\nsettlement is the probability of success on the merits.” Poplar Creek Dev. Co. v. Chesapeake\nAppalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011). Thus, we address the most important\nfactor first before proceeding to the remaining factors.\n\n 1. Likelihood of Success on the Merits\n\n A court “cannot judge the fairness of a proposed compromise without weighing the\nplaintiff’s likelihood of success on the merits against the amount and form of the relief offered in\nthe settlement.” UAW, 497 F.3d at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88\n(1981)). For this reason, all class action settlements involve a balancing of competing interests.\nWhen extinguishing the claims of a large class of people—some of whom may not even be\naware that a pending lawsuit affects their rights—courts are required to closely analyze whether\nthe claims that the unnamed class members are giving up are worth the benefits they may\nreceive. Balancing those interests is difficult in cases involving industries rife with turnover, fear\nof retaliation, and unequal bargaining interests between the class and the defendants. The district\ncourt appropriately gave a great deal of consideration to this factor.\n\n After evaluating a damages model based on records from Jane Doe 1 and one other class\nmember, as well as the high risks inherent in litigation and the potential impact of the mandatory\narbitration clause on the Dancers’ claims, the district court found that the direct benefits provided\nby the Settlement Agreement outweighed the value of the Dancers’ claims. We affirm, as the\ndistrict court did not abuse its discretion in valuing the Dancers’ claims or the Settlement\nAgreement.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 8\n\n\n i. Value of the Dancers’ Claims\n\n The Objectors’ primary claim is that the district court abused its discretion by improperly\ncalculating the value of the FLSA and state wage-and-hour claims that the Dancers were\nrelinquishing in the Settlement Agreement. As a result of limited discovery and the absence of a\nclass-wide damages model, the Objectors contend that the Settlement Agreement\nundercompensates the class. By estimating the number of dancers working at a club per shift,\nthe length of their shifts, and multiplying it by the federal minimum wage, the Objectors estimate\nthat if the class action proceeded to trial, with 64 clubs, the plaintiffs could receive up to\n$141 million dollars.3 Alternatively, the Objectors point to other dancer disputes as a basis for\ncomparison, identifying over a dozen jury trials and settlements that provide dancers with higher\nawards than the Settlement Agreement. Thus, the Objectors argue that the Settlement\nAgreement’s cash pool pales in comparison to the damages that the Dancers could receive if they\nwent to trial, and the Settlement Agreement is inadequate to justify releasing the Dancers’ claims\nagainst Déjà Vu.\n\n In evaluating settlements, courts are not required “to reach any ultimate conclusions on\nthe contested issues of fact and law which underlie the merits of the dispute, for it is the very\nuncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that\ninduce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San\nFrancisco, 688 F.2d 615, 625 (9th Cir. 1982). That sentiment is reinforced here, where Déjà Vu\nand the Dancers argue that complete, accurate class-wide models can be “impossible to construct\nin exotic dancer cases,” because “clubs do not maintain adequate records or payroll data needed\nto prepare common FLSA damage modeling.” (Jane Doe 1 Br. 32–33.)\n\n But that is not to say that the court can avoid carefully scrutinizing litigation risks in\ncomplex class actions. We have found that it can be an abuse of discretion for a district court to\n“merely recite the respective arguments of the objectors and parties, and then offer up platitudes\nabout the risks of litigation generally.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,\n825 F.3d 299, 309 (6th Cir. 2016). “Instead, the district court must specifically examine what\n\n 3This estimate is undercut by the fact that the Objectors argued at the fairness hearing below that the\nDancers could receive only $70 million at trial.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 9\n\n\nthe unnamed class members would give up in the proposed settlement, and then explain why—\ngiven their likelihood of success on the merits—the tradeoff embodied in the settlement is fair to\nunnamed members of the class.” Id.\n\n Here, the district court did not abuse its discretion in determining that the benefits of the\nSettlement Agreement outweigh the value of the Dancers’ claims. The district court specifically\nexamined what the class members were giving up based upon the available records used to\ncalculate the damages model. The damages model showed the awards that a dancer could\nreceive based on full or reduced minimum wage, as well as with or without offsetting the fees\nthat dancers received during their time at Déjà Vu. By accounting for each of these factors and\npresenting the district court with an array of awards potentially available to the Dancers, the\nmodel offered some insight into the variation in recovery under different states’ laws. Thus,\nalthough the court acknowledged that the damages model was imperfect based on the lack of\nrecords for many class members, it still found that the model was “useful to determine class\nmembers’ range of possible recovery.” (Op. & Order, R. 77, PageID 4206.) Additionally, in\nlight of the precedent directing courts to look to the risks faced by the parties at hand rather than\nthe general risks of litigation, the district court did not abuse its discretion in finding that the\nmodel was more helpful than the Objectors’ comparisons to sums awarded in other class\nactions—as the court found, “[t]he key question is not Plaintiffs’ likelihood of success against\nthe defendants in the cases cited by the objectors[,] but their likelihood of success against\nDefendants here.” (Id. at PageID 4210.)\n\n Moreover, the court did not rely solely on the damages model in assessing the value of\nthe Dancers’ claims. Before approving the settlement, the district court also considered possible\ncounterclaims against the Dancers, the potential of an unfavorable verdict finding that the\nDancers should be classified as independent contractors, and the risk that the Dancers would\nhave to face mandatory and binding arbitration in compliance with the arbitration clauses in their\nperformance leases. (Id.)\n\n The high risk of arbitration in this case was recently confirmed by the Supreme Court’s\nopinion in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which transformed the lay of the land\nfor FLSA actions. Before Epic Systems, FLSA plaintiffs had successfully blocked the\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 10\n\n\nenforcement of arbitration clauses in employment contracts under the Federal Arbitration Act’s\n“saving clause” by arguing that individual arbitration clauses in employment contracts violated\nfederal law protecting employees’ ability to engage in class or collective actions. Id. at 1620.\nEpic Systems foreclosed that argument. Id. at 1623, 1626, 1632. In reliance upon Epic Systems,\nwe have since held that the FLSA’s collective action guarantees do “not displace the Arbitration\nAct’s requirement that we enforce the employees’ agreements as written.” Gaffers v. Kelly\nServs., 900 F.3d 293, 296 (6th Cir. 2018); see also McGrew v. VCG Holding Corp., 735 F.\nApp’x 210, 211 (6th Cir. 2018) (finding that “individual arbitration agreements are enforceable\nagainst both employees and independent contractors” in case involving exotic dancers). These\nrulings highlight the uphill battle the Dancers would face in attempting to litigate their claims.\n\n If the arbitration clauses in the Dancers’ performance leases are enforced, proceeding\nwith arbitration poses significant risks to many of the Dancers. One major concern is that the\nDancers’ performance leases contain arbitration provisions requiring the losing party to pay the\nprevailing party’s attorneys’ fees. The Objectors also concede that a substantial number of the\nDancers fear retaliation for bringing a claim against the clubs. In sum, the district court did not\nabuse its discretion in finding that many of the Dancers would receive little, if any, relief in lieu\nof the Settlement Agreement. See In re Dry Max Pampers Litig., 724 F.3d at 723\n(“The conventional argument for class action lawsuits is that the majority of class members’\nclaims would not otherwise be worth bringing.”).\n\n ii. Value of the Settlement Agreement\n\n The district court also did not abuse its discretion in evaluating the benefits provided by\nthe Settlement Agreement’s injunctive and monetary relief. We reject the Objectors’ contention\nthat the credits available through the secondary pool function as coupons that cannot be counted\ntoward the total value of the Settlement Agreement under the Class Action Fairness Act. See\n28 U.S.C. § 1712. The Objectors’ main support for that proposition, In re Easysaver Rewards\nLitig., 906 F.3d 747 (9th Cir. 2018), is readily distinguishable. In contrast with coupon\nsettlements that require an individual to buy a product or service before receiving the promised\nbenefits, id. at 755, the secondary pool does not require class members to “hand over more of\ntheir own money” to be eligible to redeem the benefits of the Settlement Agreement in this case;\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 11\n\n\nhere, the cash pool offers an alternative form of relief to dancers who prefer to cut ties with Déjà\nVu. Because the Dancers can choose to receive compensation from the cash pool regardless of\nwhether they continued working at Déjà Vu, the Settlement Agreement cannot be understood to\nrequire the Dancers to “reengag[e] in the same . . . activity that they believe led to their injury.”\nId. at 757.\n\n When compared against the risks involved in litigating or arbitrating the Dancers’ claims,\nthe value of the Settlement Agreement is significant. The injunctive relief mandates extensive\nchanges to Déjà Vu’s business practices, and both the $1 million cash pool and the $4.5 million\nsecondary pool are available to provide financial compensation to the Dancers in the form that\nbest suits each individual dancer’s circumstances. We find that the district court did not abuse its\ndiscretion in finding that the tangible benefits afforded to class members as a result of the\nSettlement Agreement outweigh the value of the volatile claims that the Dancers released.\n\n 2. Remaining UAW Factors\n\n UAW also instructs courts to consider the risk of fraud or collusion. UAW, 497 F.3d at\n631. The Objectors argue that the Settlement Agreement promotes collusion between the\nDancers’ counsel and Déjà Vu’s counsel. Specifically, the Objectors take issue with the\nSettlement Agreement’s “clear-sailing clause,” which provides that Déjà Vu “agree[s] not to\nobject to a request” for up to $900,000 of direct attorneys’ fees and up to $300,000 of indirect\nattorneys’ fees. (Settlement Agreement, R. 41-2, PageID 1173.) The Objectors argue that the\n“attorneys’ fees sought by Class Counsel . . . dwarf[] the recovery of the Class.” (C.T. Br. 29.)\nThe district court correctly rejected this argument. “Not every ‘clear sailing provision’\ndemonstrates collusion.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 426 (6th Cir. 2012).\nAdditionally, the fee award is not disproportionate to the recovery of the class. On one hand,\nassuming that the Dancers fully deplete the secondary pool and class counsel receive the full\namount of indirect fees, the attorneys’ fees would represent only 23% of the total settlement\naward, even without including the value of injunctive relief. On the other hand, assuming that\nnot a single dancer opts into the secondary pool, the $900,000 in attorneys’ fees would represent\nonly 20% of the combined value of the cash pool and the district court’s approximation of the\nvalue of the injunctive relief. It is not abnormal for negotiated attorneys’ fee awards to comprise\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 12\n\n\n20% to 30% of the total award. See Waters v. Intern. Precious Metal Corp., 190 F.3d 1291,\n1294 (11th Cir. 1999); Gooch, 672 F.3d at 426. Accordingly, the district court did not abuse its\ndiscretion in finding that this factor weighs in favor of approval.\n\n Another UAW factor is the complexity, expense, and likely duration of the litigation.\n497 F.3d at 631. The district court noted that “[t]his case presents complex legal issues because\nit combines a Rule 23 class action with a FLSA collective action.” (Op. & Order, R. 77, PageID\n4214.) Indeed, the Cin-Lan settlement illustrates the complexity of an FLSA class action claim\ninvolving exotic dancers. There, plaintiffs litigated against defendants for three years and\nengaged in extensive discovery and motion practice before entering into a final settlement\nagreement. In contrast, the Settlement Agreement in this case conserves judicial resources by\nconsolidating eight other lawsuits and administrative proceedings into the present Settlement\nAgreement. The district court did not abuse its discretion in finding that this factor cuts in favor\nof approving the Settlement Agreement.\n\n The next UAW factor is the amount of discovery engaged in by the parties as a factor in\napproving settlements. 497 F.3d at 631. The Objectors argue that the district court abused its\ndiscretion by approving the settlement without requiring the parties to engage in discovery,\nwhich led to class counsel undervaluing the class’s claims and creating a financial windfall for\nclass counsel. But courts have held that settlements are permissible where, “notwithstanding the\nstatus of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the\nfacts of their case.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir.\n1981). The Cin-Lan case, which involved extensive discovery, provided the Dancers’ counsel\nwith a vehicle to obtain the necessary information. This case involves the same counsel\nlitigating similar claims on behalf of many of the same dancers against one of the same\ndefendants. As the district court found, the parties in this case “made a sufficient showing of\ninformal discovery based on their efforts in Cin-Lan, when [the same class counsel] served\n13 interrogatories and 87 requests for production on each of the three [D]efendants, took\n13 depositions of Defendants’ officers and managers, and filed numerous subpoenas on third\nparties.” (Op. & Order, R. 77, PageID 4214.) Because of the substantial overlap between the\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 13\n\n\ntwo cases, the district court did not abuse its discretion in finding that the parties’ informal\ndiscovery from Cin-Lan was sufficient.\n\n Two UAW factors focus on the class’s response to the proposed settlement: courts are\nrequired to consider the opinions of class counsel and class representatives, as well as the\nreactions of absent class members. 497 F.3d at 631. Jane Doe 1, the named representative, is\nnot among the Objectors in this case—she has a favorable view of the settlement. And both Déjà\nVu and the Dancers agreed that the counsel representing both parties had extensive experience,\nwhich supports the district court’s finding that counsels’ positive outlook toward the fairness of\nthe settlement weighed in favor of approving the Settlement Agreement. The settlement\nagreement has also received a relatively positive response from absent class members. The class\nconsists of 28,177 current and former dancers. Of those, 24,575 notices were delivered, which\namounts to nearly 88% of the class. And of the dancers that received notices, by the time the\ncourt held its fairness hearing, 19% of the class—or 4,623 dancers—opted-in to the settlement,\nwhich exceeded the parties’ expected 15% opt-in rate. In contrast, only 66 dancers opted-out of\nthe settlement, or 0.2%, and there were only six objectors to the settlement, or 0.02%. The\nObjectors’ only challenge to these two factors is their contention that the district court afforded\ntoo much deference to counsel. But the court expressly acknowledged that counsel’s opinions\nwere “by no means dispositive.” (Op. & Order, R. 77, PageID 4215.) Thus, the district court did\nnot abuse its discretion in finding that the level of support and participation from the class\nsupported approval of the Settlement Agreement.\n\n The final UAW factor is the public interest. 497 F.3d at 631. Courts have held that “there\nis a strong public interest in encouraging settlement of complex litigation and class action suits\nbecause they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial\nresources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003). At the\nsame time, courts have also found that the enforcing the FLSA furthers an important interest in\n“encouraging employees and others to ensure that employers comply with laws governing\nemployment.” Levan v. Sears, Roebuck & Co., 984 F. Supp. 2d 855, 871 (E.D. Tenn. 2013).\nThe district court concluded that this Settlement Agreement achieves both purposes: the\nsettlement “puts an end to ‘potentially long and protracted litigation,’” and it also “mandates\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 14\n\n\nlong-term structural changes to Defendants’ business practices designed to ensure workers are\naccurately classified and employees receive appropriate wages and legal protections.” (Op.\n& Order, R. 77, PageID 4216.) We agree. Therefore, the district court did not abuse its\ndiscretion in finding that this factor weighed in favor of approving the Settlement Agreement as\nwell.\n\n B. Rule 23 Procedural Requirements\n\n The Objectors also argue that the settlement violates the procedural requirements of\nFederal Rule of Civil Procedure 23, because the class release is impermissibly broad and the\nclass notice failed to adequately apprise the class members of their rights. We address each\nargument in turn.\n\n 1. Breadth of Class Release\n\n The Settlement Agreement defines the “Settlement Class Members’ Released Claims” as\n“all Claims asserted in the Action, or to be asserted in the Action by way of the amendment\ncontemplated in this Agreement, and any and all Claims of any conceivable kind or nature\nwhatsoever that are based on such pleadings or that are reasonably related thereto (except only\nfor those under the FLSA).” (Settlement Agreement, R. 41-2, PageID 1160.) The Settlement\nAgreement goes on to list ten categories of state law claims it specifically includes within this\ndefinition, including employment, wage, and labor claims against Déjà Vu. The Objectors claim\nthat a class release of this breadth cannot satisfy the “identical factual predicate doctrine”\noutlined by the Second Circuit in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., which limits class\nreleases to “claims that share the same integral facts as settled claims, provided that the released\nclaims are adequately represented prior to settlement.” 396 F.3d 96, 106 (2d Cir. 2005). As with\nthe remainder of the district court’s approval of the Settlement Agreement, we review the district\ncourt’s determination on this issue for abuse of discretion. Moulton v. U.S. Steel Corp., 581 F.3d\n344, 349 (6th Cir. 2009).\n\n This court has held that “the question is not whether the definition of the claim in the\ncomplaint and the definition of the claim in the release overlap perfectly; it is whether the\nreleased claims share a ‘factual predicate’ with the claims pled in the complaint.” Moulton,\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 15\n\n\n581 F.3d at 349 (internal citations omitted). The claims released in the Settlement Agreement\nshare that factual predicate, as the release specifically cabins the categories of relinquished\nclaims to those “based upon” or “reasonably related” to the pleadings and claims asserted in the\nSettlement Agreement. Therefore, the Objectors’ argument that the release covers claims\n“completely unrelated to the lawsuit” lacks merit. (Cabrera Br. 54 (emphasis in original).)\n\n 2. Adequacy of Notice to Class Members\n\n Finally, the Objectors claim that the class notice was inadequate to apprise the class\nmembers of their rights. Rule 23(c)(2)(b) requires the class to provide notice of the nature of the\naction; the definition of the class certified; the class claims, issues, or defenses; information on\nhow a class member can enter an appearance with their lawyer; information on how class\nmembers can opt into or out of the settlement; and the binding effect of the settlement\nagreement. Additionally, we have held that “due process requires that notice to the class be\nreasonably calculated, under all the circumstances, to apprise interested parties of the pendency\nof the action and afford them an opportunity to present their objections.” Vassalle v. Midland\nFunding LLC, 708 F.3d 747, 759 (6th Cir. 2013). We review the adequacy of class notice de\nnovo. Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).\n\n The notice that the Dancers provided to the class covered all of the bases set out in Rule\n23(c)(2)(b). Still, the Objectors advance several arguments for why the notice failed to comport\nwith the due process requirements outlined above.\n\n First, the Objectors contend that the notice mischaracterized the scope of the release.\nThis argument fails. The notice stated that, by staying in the class, a dancer would “give up [the]\nright to sue Deja Vu . . . on any state law claims later,” and that all class members “will have\nreleased all Defendants, including all of the Deja Vu–Affiliated Nightclubs, from any further\nclaims related to the matters raised in this lawsuit” such that class members “cannot ever sue\nany of the Defendants about these issues based upon conduct that occurred prior to the Effective\nDate of the settlement.” (Notice of Settlement, R. 37-1, PageID 1036, 1041–42.) The class\nnotice accurately captured the scope of the release. See supra at 14.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 16\n\n\n Second, the Objectors argue that the notice provided was unclear with respect to how the\nsettlement would be split among the Dancers. But the Objectors cite no authority that requires a\nnotice to state how much money each class member would receive, nor do they explain how the\nnotice could have accurately stated the amount each dancer was eligible to receive from the cash\npool before knowing the total number of dancers who opted to participate in the cash pool. The\nnotice appropriately details the two forms of monetary relief, including the total cash pool\namount and the structure and value of the secondary pool credits, which is reasonable under the\ncircumstances.\n\n Third, the Objectors claim that the notice was deficient because it failed to list “the 10\nprior-filed class and collective actions against some of these clubs in which class members could\nhave pursued their claims as an alternative to joining this action.” (Cabrera Br. 55.) For support,\nthe Objectors point to Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a case in\nwhich the Objectors claim that the Seventh Circuit reversed the approval of a settlement because\nof a failure to inform class members of a pending state case. But the Objectors oversell the\nholding in Mirfasihi, which was rooted in the fact that many class members could have recovered\nin the pending cases but were entitled to absolutely no recovery in the action in question. See id.\nat 785. The Seventh Circuit expressly stated that, in other contexts, notice of pending suits is not\na “requirement[] of an acceptable settlement.” Id. Here, where the Settlement Agreement\nprovides some monetary relief to every class member and compels Déjà Vu to change its\nbusiness practices through injunctive relief, failure to provide notice of other pending suits does\nnot render the class notice unreasonable. For those reasons, the notice comports with the\nrequirements of due process.\n\n III.\n\n We affirm the judgment of the district court.\n\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 17\n\n\n _________________\n\n OPINION\n _________________\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jane Doe v. Deja Vu Consulting, Inc.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-03\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0113p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n JANE DOES 1–2, ┐\\n Plaintiffs-Appellees, │\\n │\\n │\\n EVA CABRERA and BRITTNEY HALVERSON (17-1801); │\\n B.D. (17-1802); C.T. (17-1827), > Nos. 17-1801/1802/1827\\n Objectors-Appellants. │\\n │\\n │\\n v. │\\n │\\n DÉJÀ VU CONSULTING, INC., dba Déjà Vu of Saginaw, │\\n Inc., nka Déjà Vu Services, Inc., et al., │\\n │\\n │\\n Defendants-Appellees. │\\n ┘\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:16-cv-10877—Stephen J. Murphy, III, District Judge.\\n\\n Argued: October 17, 2018\\n\\n Decided and Filed: June 3, 2019\\n\\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Harold L. Lichten, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for\\nall Appellants. Jason J. Thompson, SOMERS SCHWARTZ, P.C., Southfield, Michigan, for\\nJane Doe Appellees. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan,\\nfor Déjà Vu Appellees. ON BRIEF: Harold L. Lichten, Shannon Liss-Riordan, Matthew\\nThomson, LICHTEN & LISS-RIORDAN, P.C., Boston, Massachusetts, for Appellants in 17-\\n1801. Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,\\nMichigan, for Déjà Vu Appellees. Charles P. Yezbak, III, Daniel Eduardo Arciniegas, YEZBAK\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 2\\n\\n\\nLAW OFFICES, Nashville, Tennessee, for Appellant in 17-1802. W. Allen McDonald, LACY,\\nPRICE & WAGNER, P.C., Knoxville, Tennessee, for Appellant in 17-1827. Beth M. Rivers,\\nPITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Jane Doe Appellees.\\n\\n COLE, C.J., delivered the opinion of the court in which NALBANDIAN, J., joined, and\\nWHITE, J., joined in part. WHITE, J. (pp. 17–22), delivered a separate opinion dissenting in\\npart.\\n _________________\\n\\n OPINION\\n _________________\\n\\n COLE, Chief Judge. After a class of 28,177 exotic dancers alleged that Déjà Vu dance\\nclubs violated the Fair Labor Standards Act and state wage-and-hour laws, Déjà Vu and the class\\nof dancers entered into a settlement agreement. The district court approved the settlement over\\nthe objections of four class members who now appeal, arguing that the settlement was\\nfundamentally unfair and failed to comport with procedural requirements for class action\\nsettlements. Because the district court did not abuse its discretion in approving the settlement,\\nwe affirm.\\n\\n I.\\n\\n This class of dancers was not the first to sue Déjà Vu for alleged Fair Labor Standards\\nAct (“FLSA”) and state law violations. In 2008, a class of dancers filed a class action lawsuit in\\nthe Eastern District of Michigan, alleging that two dance clubs—Cin-Lan, Inc., and Déjà Vu\\nConsulting, Inc.—misclassified them as non-employees or independent contractors in violation\\nof the FLSA and the Michigan Minimum Wage Act. Over the next three years, the parties\\nengaged in extensive discovery and motion practice. After more than six months of negotiations,\\nthey entered into a settlement agreement that provided the dancers monetary compensation and\\ninjunctive relief. The district court approved the settlement (“Cin-Lan Settlement”) and retained\\njurisdiction to ensure its enforcement. Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2011 WL\\n13266312 (E.D. Mich. July 15, 2011).\\n\\n On March 10, 2016—five years after the approval of the Cin-Lan Settlement—another\\ndancer (“Jane Doe 1”) filed a complaint against Déjà Vu Consulting, its affiliate dance clubs, and\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 3\\n\\n\\nits owner Harry Mohney (collectively, “Déjà Vu”) in the Eastern District of Michigan. Jane Doe\\n1 filed the complaint as both a class action under Federal Rule of Civil Procedure 23 and a\\ncollective action under 29 U.S.C. § 216(b) of the FLSA, seeking to bring the action on behalf of\\nherself and “[a]ll exotic dancers who worked for Defendants and were misclassified by\\nDefendants as independent contractors at any time in the past three years” (collectively, “the\\nDancers”). (Compl., R. 1, PageID 24–25 (italics in original).) This lawsuit involves the same\\nclass counsel, many of the same dancers, one of the same defendants, and similar claims as the\\ninitial Cin-Lan dispute. Specifically, the Dancers allege that Déjà Vu’s clubs violated the FLSA\\nand state wage-and-hour laws by “intentionally misclassif[ying] class members as independent\\ncontractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split\\ngratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.”\\n(Op. & Order, R. 77, PageID 4200.)1\\n\\n Déjà Vu filed a motion to dismiss or stay proceedings in favor of arbitration on\\nSeptember 16, 2016, and it attached a copy of Jane Doe 1’s Dancer Performance Lease\\nagreement, which included a clause mandating binding individual arbitration for all claims\\narising out of her performances.\\n\\n Before the district court made any rulings on the merits, the parties began negotiating a\\nsettlement agreement. On December 28, 2016, the Dancers’ attorneys notified the court that they\\nhad “executed a tentative term sheet on a settlement.” (Mot. to Transfer Case, R. 22, PageID\\n445.) Additionally, the Dancers filed a motion requesting an intra-district transfer of the case to\\nthe same judge who retained jurisdiction over the Cin-Lan settlement, both because the case\\ninvokes his continuing jurisdiction and because he was “intimately familiar with the facts and\\ncircumstances of the parties’ dispute after presiding over the prior case for approximately four\\nyears.” (Id. at PageID 446.) On January 4, 2017, the district court granted the motion to\\ntransfer.\\n\\n\\n\\n\\n 1Although the Cin-Lan case involved similar allegations, the Cin-Lan settlement did not mandate that the\\nclubs convert the dancers from independent contractors to employees.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 4\\n\\n\\n After negotiation, the parties reached a settlement agreement (“Settlement Agreement”).\\nIn exchange for releasing their claims against Déjà Vu, the Settlement Agreement provides the\\nDancers with injunctive and monetary relief.\\n\\n The injunctive relief is structured around the Settlement Agreement’s requirement that\\nevery club provide its current dancers with an Entertainer Assessment Form. This assessment\\ndetermines whether the dancer should be classified as an employee or an Independent\\nProfessional Entertainer (“IPE”), the latter of which is akin to an independent contractor. The\\nSettlement Agreement requires dancers to complete the assessment before they can perform at\\nany of Déjà Vu’s clubs. The assessment must then be verified by the club’s Certified Public\\nAccountant.\\n\\n The remaining injunctive relief turns on whether the assessment determines the dancer in\\nquestion is an employee or an IPE. Under the Settlement Agreement, employees may be\\nrequired to tip-out or tip-pool with the club’s other employees, but they must be paid minimum\\nwage (or, where available, at the tip-credited wage). Employees will also be entitled to\\ncommissions of at least 20% of their dance fees that exceed the cost of employment, as well as\\n20% commissions of their sale of ‘conversation beverages,’ which are drinks that dancers\\npersuade customers to buy for them. Employees will be reimbursed by the club for all license\\nand permit fees required to perform at the club, and the club will provide them with two logo\\ncostumes per month to wear while working. In contrast, the Settlement Agreement prevents\\nDéjà Vu from imposing any work schedule upon IPEs or requiring IPEs to tip-out or tip-pool\\nwith any employee. IPEs also cannot be required to wear any costume. Finally, IPEs will have\\nthe right to vote in each club’s annual IPE meeting to change or modify any club policy that\\naffects IPEs, which ensures that they have sufficient control over the clubs’ operations to prevent\\nDéjà Vu from exerting employer-employee control over IPEs.\\n\\n With respect to monetary relief, the Settlement Agreement divides a total award of $6.55\\nmillion into three primary categories: $1 million toward the Net Cash Payment Settlement Fund\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 5\\n\\n\\n(“the cash pool”), $4.5 million toward Secondary Pool Remuneration (“the secondary pool”),\\nand $900,000 in attorneys’ fees.2\\n\\n The first two categories serve as alternative forms of monetary relief for the class\\nmembers. The first option is to receive a one-time payment from the cash pool. The $1 million\\ncash pool includes $30,000 in Enhancement Payments for the named plaintiffs and $50,000 to\\npay defendants’ Administration Costs. After subtracting these costs, the total cash pool to be\\nsplit between all of the Dancers who elect to receive a one-time direct payment is $920,000.\\nCash pool funds will be allocated on a point-based system that favors dancers who worked for\\nthe clubs for a longer period of time, as well as dancers who worked more recently at Déjà Vu’s\\nclubs.\\n\\n The second option is to collect settlement funds from the secondary pool in the form of\\ncredits that can be used at Déjà Vu clubs. This is the default form of relief for Dancers who do\\nnot opt into the cash pool: each time a class member performs at one of Déjà Vu’s clubs, credits\\nfrom the secondary pool will either cover 60% of her daily rent at the club or allow her to collect\\nup to $100 in dance fees. Depending on how many months the dancer has performed at the Déjà\\nVu club where she collects the credits, the total amount of money she can recuperate from the\\nsecondary pool is capped at $200, $1,000, or $2,000.\\n\\n Finally, the Settlement Agreement provides compensation for the Dancers’ attorneys.\\nUnder the Settlement Agreement, Déjà Vu agrees not to oppose an award of up to $900,000 in\\ndirect attorneys’ fees. Déjà Vu also agrees not to oppose an award of up to $300,000 in indirect\\nattorneys’ fees to be paid out of the Dancers’ secondary pool. The Settlement Agreement\\nestablishes that the indirect fees are to be calculated based on 33.3% of the value of the redeemed\\nportion of the secondary pool. These indirect fees are designed to encourage the Dancers’\\ncounsel to try and shore up as much participation as possible in the secondary pool by creating a\\n“direct financial incentive” for their work. (Déjà Vu Br. 64 (italics in original).)\\n\\n\\n\\n\\n 2The Settlement Agreement also allocates $100,000 to resolve all Private Attorneys General Act claims\\nagainst its clubs in California.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 6\\n\\n\\n On June 19, 2017, the district court approved the Settlement Agreement. In finding that\\nthe parties satisfied their burden to show that the Settlement Agreement was fair, the district\\ncourt turned to International Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631\\n(6th Cir. 2007) (“UAW”), which established a set of factors to determine the fairness of class\\naction settlements. In particular, the court stressed the first factor—the comparison between the\\nrelief offered in the Settlement Agreement and the Dancers’ likelihood of success on the merits\\nagainst Déjà Vu. The court emphasized the “high risk of continued litigation and the uncertain\\nlikelihood of success on the merits” for the Dancers, finding that without the Settlement\\nAgreement, “the vast majority of class members would recover nothing.” (Op. & Order, R. 77,\\nPageID 4212, 4221.) The court also found that the Settlement Agreement “offers value to the\\nclass in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to\\nDefendants’ business practices, all of which directly benefit class members.” (Id. at PageID\\n4212.) After analyzing the remaining UAW factors, the court concluded that the Settlement\\nAgreement “is the result of a bona-fide dispute, and the terms established in the settlement are a\\nfair, reasonable, and adequate resolution of the claims.” (Id. at PageID 4216.)\\n\\n Four members of the class—Eva Cabrera, Brittney Halverson, B.D., and C.T.\\n(collectively, “the Objectors”)—objected to the settlement. The district court overruled their\\nobjections, and they now appeal the approval of the Settlement Agreement. The Objectors’\\narguments fall into two broad categories. First, the Objectors argue that the district court abused\\nits discretion by failing to properly apply the factors that ensure the fairness of settlement\\nagreements, especially with respect to the district court’s attempt to calculate the value of the\\nDancers’ claims. Second, the Objectors argue that the settlement violates the procedural\\nrequirements of Federal Rule of Civil Procedure 23, given the breadth of the class release and the\\nnotice afforded to the unnamed class members.\\n\\n II.\\n\\n We review a district court’s approval of a class action settlement for abuse of discretion.\\nIn re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013).\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 7\\n\\n\\n A. UAW Fairness Factors\\n\\n In UAW, we established a seven-factor test to assess whether or not a class action\\nsettlement is “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e).\\n497 F.3d at 631. Those factors include: (1) the “risk of fraud or collusion,” (2) the “complexity,\\nexpense and likely duration of the litigation,” (3) the “amount of discovery engaged in by the\\nparties,” (4) the “likelihood of success on the merits,” (5) the “opinions of class counsel and class\\nrepresentatives,” (6) the “reaction of absent class members,” and (7) the “public interest.” Id.\\n\\n Of the UAW factors, “[t]he most important of the factors to be considered in reviewing a\\nsettlement is the probability of success on the merits.” Poplar Creek Dev. Co. v. Chesapeake\\nAppalachia, L.L.C., 636 F.3d 235, 245 (6th Cir. 2011). Thus, we address the most important\\nfactor first before proceeding to the remaining factors.\\n\\n 1. Likelihood of Success on the Merits\\n\\n A court “cannot judge the fairness of a proposed compromise without weighing the\\nplaintiff’s likelihood of success on the merits against the amount and form of the relief offered in\\nthe settlement.” UAW, 497 F.3d at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88\\n(1981)). For this reason, all class action settlements involve a balancing of competing interests.\\nWhen extinguishing the claims of a large class of people—some of whom may not even be\\naware that a pending lawsuit affects their rights—courts are required to closely analyze whether\\nthe claims that the unnamed class members are giving up are worth the benefits they may\\nreceive. Balancing those interests is difficult in cases involving industries rife with turnover, fear\\nof retaliation, and unequal bargaining interests between the class and the defendants. The district\\ncourt appropriately gave a great deal of consideration to this factor.\\n\\n After evaluating a damages model based on records from Jane Doe 1 and one other class\\nmember, as well as the high risks inherent in litigation and the potential impact of the mandatory\\narbitration clause on the Dancers’ claims, the district court found that the direct benefits provided\\nby the Settlement Agreement outweighed the value of the Dancers’ claims. We affirm, as the\\ndistrict court did not abuse its discretion in valuing the Dancers’ claims or the Settlement\\nAgreement.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 8\\n\\n\\n i. Value of the Dancers’ Claims\\n\\n The Objectors’ primary claim is that the district court abused its discretion by improperly\\ncalculating the value of the FLSA and state wage-and-hour claims that the Dancers were\\nrelinquishing in the Settlement Agreement. As a result of limited discovery and the absence of a\\nclass-wide damages model, the Objectors contend that the Settlement Agreement\\nundercompensates the class. By estimating the number of dancers working at a club per shift,\\nthe length of their shifts, and multiplying it by the federal minimum wage, the Objectors estimate\\nthat if the class action proceeded to trial, with 64 clubs, the plaintiffs could receive up to\\n$141 million dollars.3 Alternatively, the Objectors point to other dancer disputes as a basis for\\ncomparison, identifying over a dozen jury trials and settlements that provide dancers with higher\\nawards than the Settlement Agreement. Thus, the Objectors argue that the Settlement\\nAgreement’s cash pool pales in comparison to the damages that the Dancers could receive if they\\nwent to trial, and the Settlement Agreement is inadequate to justify releasing the Dancers’ claims\\nagainst Déjà Vu.\\n\\n In evaluating settlements, courts are not required “to reach any ultimate conclusions on\\nthe contested issues of fact and law which underlie the merits of the dispute, for it is the very\\nuncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that\\ninduce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San\\nFrancisco, 688 F.2d 615, 625 (9th Cir. 1982). That sentiment is reinforced here, where Déjà Vu\\nand the Dancers argue that complete, accurate class-wide models can be “impossible to construct\\nin exotic dancer cases,” because “clubs do not maintain adequate records or payroll data needed\\nto prepare common FLSA damage modeling.” (Jane Doe 1 Br. 32–33.)\\n\\n But that is not to say that the court can avoid carefully scrutinizing litigation risks in\\ncomplex class actions. We have found that it can be an abuse of discretion for a district court to\\n“merely recite the respective arguments of the objectors and parties, and then offer up platitudes\\nabout the risks of litigation generally.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,\\n825 F.3d 299, 309 (6th Cir. 2016). “Instead, the district court must specifically examine what\\n\\n 3This estimate is undercut by the fact that the Objectors argued at the fairness hearing below that the\\nDancers could receive only $70 million at trial.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 9\\n\\n\\nthe unnamed class members would give up in the proposed settlement, and then explain why—\\ngiven their likelihood of success on the merits—the tradeoff embodied in the settlement is fair to\\nunnamed members of the class.” Id.\\n\\n Here, the district court did not abuse its discretion in determining that the benefits of the\\nSettlement Agreement outweigh the value of the Dancers’ claims. The district court specifically\\nexamined what the class members were giving up based upon the available records used to\\ncalculate the damages model. The damages model showed the awards that a dancer could\\nreceive based on full or reduced minimum wage, as well as with or without offsetting the fees\\nthat dancers received during their time at Déjà Vu. By accounting for each of these factors and\\npresenting the district court with an array of awards potentially available to the Dancers, the\\nmodel offered some insight into the variation in recovery under different states’ laws. Thus,\\nalthough the court acknowledged that the damages model was imperfect based on the lack of\\nrecords for many class members, it still found that the model was “useful to determine class\\nmembers’ range of possible recovery.” (Op. & Order, R. 77, PageID 4206.) Additionally, in\\nlight of the precedent directing courts to look to the risks faced by the parties at hand rather than\\nthe general risks of litigation, the district court did not abuse its discretion in finding that the\\nmodel was more helpful than the Objectors’ comparisons to sums awarded in other class\\nactions—as the court found, “[t]he key question is not Plaintiffs’ likelihood of success against\\nthe defendants in the cases cited by the objectors[,] but their likelihood of success against\\nDefendants here.” (Id. at PageID 4210.)\\n\\n Moreover, the court did not rely solely on the damages model in assessing the value of\\nthe Dancers’ claims. Before approving the settlement, the district court also considered possible\\ncounterclaims against the Dancers, the potential of an unfavorable verdict finding that the\\nDancers should be classified as independent contractors, and the risk that the Dancers would\\nhave to face mandatory and binding arbitration in compliance with the arbitration clauses in their\\nperformance leases. (Id.)\\n\\n The high risk of arbitration in this case was recently confirmed by the Supreme Court’s\\nopinion in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which transformed the lay of the land\\nfor FLSA actions. Before Epic Systems, FLSA plaintiffs had successfully blocked the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 10\\n\\n\\nenforcement of arbitration clauses in employment contracts under the Federal Arbitration Act’s\\n“saving clause” by arguing that individual arbitration clauses in employment contracts violated\\nfederal law protecting employees’ ability to engage in class or collective actions. Id. at 1620.\\nEpic Systems foreclosed that argument. Id. at 1623, 1626, 1632. In reliance upon Epic Systems,\\nwe have since held that the FLSA’s collective action guarantees do “not displace the Arbitration\\nAct’s requirement that we enforce the employees’ agreements as written.” Gaffers v. Kelly\\nServs., 900 F.3d 293, 296 (6th Cir. 2018); see also McGrew v. VCG Holding Corp., 735 F.\\nApp’x 210, 211 (6th Cir. 2018) (finding that “individual arbitration agreements are enforceable\\nagainst both employees and independent contractors” in case involving exotic dancers). These\\nrulings highlight the uphill battle the Dancers would face in attempting to litigate their claims.\\n\\n If the arbitration clauses in the Dancers’ performance leases are enforced, proceeding\\nwith arbitration poses significant risks to many of the Dancers. One major concern is that the\\nDancers’ performance leases contain arbitration provisions requiring the losing party to pay the\\nprevailing party’s attorneys’ fees. The Objectors also concede that a substantial number of the\\nDancers fear retaliation for bringing a claim against the clubs. In sum, the district court did not\\nabuse its discretion in finding that many of the Dancers would receive little, if any, relief in lieu\\nof the Settlement Agreement. See In re Dry Max Pampers Litig., 724 F.3d at 723\\n(“The conventional argument for class action lawsuits is that the majority of class members’\\nclaims would not otherwise be worth bringing.”).\\n\\n ii. Value of the Settlement Agreement\\n\\n The district court also did not abuse its discretion in evaluating the benefits provided by\\nthe Settlement Agreement’s injunctive and monetary relief. We reject the Objectors’ contention\\nthat the credits available through the secondary pool function as coupons that cannot be counted\\ntoward the total value of the Settlement Agreement under the Class Action Fairness Act. See\\n28 U.S.C. § 1712. The Objectors’ main support for that proposition, In re Easysaver Rewards\\nLitig., 906 F.3d 747 (9th Cir. 2018), is readily distinguishable. In contrast with coupon\\nsettlements that require an individual to buy a product or service before receiving the promised\\nbenefits, id. at 755, the secondary pool does not require class members to “hand over more of\\ntheir own money” to be eligible to redeem the benefits of the Settlement Agreement in this case;\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 11\\n\\n\\nhere, the cash pool offers an alternative form of relief to dancers who prefer to cut ties with Déjà\\nVu. Because the Dancers can choose to receive compensation from the cash pool regardless of\\nwhether they continued working at Déjà Vu, the Settlement Agreement cannot be understood to\\nrequire the Dancers to “reengag[e] in the same . . . activity that they believe led to their injury.”\\nId. at 757.\\n\\n When compared against the risks involved in litigating or arbitrating the Dancers’ claims,\\nthe value of the Settlement Agreement is significant. The injunctive relief mandates extensive\\nchanges to Déjà Vu’s business practices, and both the $1 million cash pool and the $4.5 million\\nsecondary pool are available to provide financial compensation to the Dancers in the form that\\nbest suits each individual dancer’s circumstances. We find that the district court did not abuse its\\ndiscretion in finding that the tangible benefits afforded to class members as a result of the\\nSettlement Agreement outweigh the value of the volatile claims that the Dancers released.\\n\\n 2. Remaining UAW Factors\\n\\n UAW also instructs courts to consider the risk of fraud or collusion. UAW, 497 F.3d at\\n631. The Objectors argue that the Settlement Agreement promotes collusion between the\\nDancers’ counsel and Déjà Vu’s counsel. Specifically, the Objectors take issue with the\\nSettlement Agreement’s “clear-sailing clause,” which provides that Déjà Vu “agree[s] not to\\nobject to a request” for up to $900,000 of direct attorneys’ fees and up to $300,000 of indirect\\nattorneys’ fees. (Settlement Agreement, R. 41-2, PageID 1173.) The Objectors argue that the\\n“attorneys’ fees sought by Class Counsel . . . dwarf[] the recovery of the Class.” (C.T. Br. 29.)\\nThe district court correctly rejected this argument. “Not every ‘clear sailing provision’\\ndemonstrates collusion.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 426 (6th Cir. 2012).\\nAdditionally, the fee award is not disproportionate to the recovery of the class. On one hand,\\nassuming that the Dancers fully deplete the secondary pool and class counsel receive the full\\namount of indirect fees, the attorneys’ fees would represent only 23% of the total settlement\\naward, even without including the value of injunctive relief. On the other hand, assuming that\\nnot a single dancer opts into the secondary pool, the $900,000 in attorneys’ fees would represent\\nonly 20% of the combined value of the cash pool and the district court’s approximation of the\\nvalue of the injunctive relief. It is not abnormal for negotiated attorneys’ fee awards to comprise\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 12\\n\\n\\n20% to 30% of the total award. See Waters v. Intern. Precious Metal Corp., 190 F.3d 1291,\\n1294 (11th Cir. 1999); Gooch, 672 F.3d at 426. Accordingly, the district court did not abuse its\\ndiscretion in finding that this factor weighs in favor of approval.\\n\\n Another UAW factor is the complexity, expense, and likely duration of the litigation.\\n497 F.3d at 631. The district court noted that “[t]his case presents complex legal issues because\\nit combines a Rule 23 class action with a FLSA collective action.” (Op. & Order, R. 77, PageID\\n4214.) Indeed, the Cin-Lan settlement illustrates the complexity of an FLSA class action claim\\ninvolving exotic dancers. There, plaintiffs litigated against defendants for three years and\\nengaged in extensive discovery and motion practice before entering into a final settlement\\nagreement. In contrast, the Settlement Agreement in this case conserves judicial resources by\\nconsolidating eight other lawsuits and administrative proceedings into the present Settlement\\nAgreement. The district court did not abuse its discretion in finding that this factor cuts in favor\\nof approving the Settlement Agreement.\\n\\n The next UAW factor is the amount of discovery engaged in by the parties as a factor in\\napproving settlements. 497 F.3d at 631. The Objectors argue that the district court abused its\\ndiscretion by approving the settlement without requiring the parties to engage in discovery,\\nwhich led to class counsel undervaluing the class’s claims and creating a financial windfall for\\nclass counsel. But courts have held that settlements are permissible where, “notwithstanding the\\nstatus of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the\\nfacts of their case.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir.\\n1981). The Cin-Lan case, which involved extensive discovery, provided the Dancers’ counsel\\nwith a vehicle to obtain the necessary information. This case involves the same counsel\\nlitigating similar claims on behalf of many of the same dancers against one of the same\\ndefendants. As the district court found, the parties in this case “made a sufficient showing of\\ninformal discovery based on their efforts in Cin-Lan, when [the same class counsel] served\\n13 interrogatories and 87 requests for production on each of the three [D]efendants, took\\n13 depositions of Defendants’ officers and managers, and filed numerous subpoenas on third\\nparties.” (Op. & Order, R. 77, PageID 4214.) Because of the substantial overlap between the\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 13\\n\\n\\ntwo cases, the district court did not abuse its discretion in finding that the parties’ informal\\ndiscovery from Cin-Lan was sufficient.\\n\\n Two UAW factors focus on the class’s response to the proposed settlement: courts are\\nrequired to consider the opinions of class counsel and class representatives, as well as the\\nreactions of absent class members. 497 F.3d at 631. Jane Doe 1, the named representative, is\\nnot among the Objectors in this case—she has a favorable view of the settlement. And both Déjà\\nVu and the Dancers agreed that the counsel representing both parties had extensive experience,\\nwhich supports the district court’s finding that counsels’ positive outlook toward the fairness of\\nthe settlement weighed in favor of approving the Settlement Agreement. The settlement\\nagreement has also received a relatively positive response from absent class members. The class\\nconsists of 28,177 current and former dancers. Of those, 24,575 notices were delivered, which\\namounts to nearly 88% of the class. And of the dancers that received notices, by the time the\\ncourt held its fairness hearing, 19% of the class—or 4,623 dancers—opted-in to the settlement,\\nwhich exceeded the parties’ expected 15% opt-in rate. In contrast, only 66 dancers opted-out of\\nthe settlement, or 0.2%, and there were only six objectors to the settlement, or 0.02%. The\\nObjectors’ only challenge to these two factors is their contention that the district court afforded\\ntoo much deference to counsel. But the court expressly acknowledged that counsel’s opinions\\nwere “by no means dispositive.” (Op. & Order, R. 77, PageID 4215.) Thus, the district court did\\nnot abuse its discretion in finding that the level of support and participation from the class\\nsupported approval of the Settlement Agreement.\\n\\n The final UAW factor is the public interest. 497 F.3d at 631. Courts have held that “there\\nis a strong public interest in encouraging settlement of complex litigation and class action suits\\nbecause they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial\\nresources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003). At the\\nsame time, courts have also found that the enforcing the FLSA furthers an important interest in\\n“encouraging employees and others to ensure that employers comply with laws governing\\nemployment.” Levan v. Sears, Roebuck & Co., 984 F. Supp. 2d 855, 871 (E.D. Tenn. 2013).\\nThe district court concluded that this Settlement Agreement achieves both purposes: the\\nsettlement “puts an end to ‘potentially long and protracted litigation,’” and it also “mandates\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 14\\n\\n\\nlong-term structural changes to Defendants’ business practices designed to ensure workers are\\naccurately classified and employees receive appropriate wages and legal protections.” (Op.\\n& Order, R. 77, PageID 4216.) We agree. Therefore, the district court did not abuse its\\ndiscretion in finding that this factor weighed in favor of approving the Settlement Agreement as\\nwell.\\n\\n B. Rule 23 Procedural Requirements\\n\\n The Objectors also argue that the settlement violates the procedural requirements of\\nFederal Rule of Civil Procedure 23, because the class release is impermissibly broad and the\\nclass notice failed to adequately apprise the class members of their rights. We address each\\nargument in turn.\\n\\n 1. Breadth of Class Release\\n\\n The Settlement Agreement defines the “Settlement Class Members’ Released Claims” as\\n“all Claims asserted in the Action, or to be asserted in the Action by way of the amendment\\ncontemplated in this Agreement, and any and all Claims of any conceivable kind or nature\\nwhatsoever that are based on such pleadings or that are reasonably related thereto (except only\\nfor those under the FLSA).” (Settlement Agreement, R. 41-2, PageID 1160.) The Settlement\\nAgreement goes on to list ten categories of state law claims it specifically includes within this\\ndefinition, including employment, wage, and labor claims against Déjà Vu. The Objectors claim\\nthat a class release of this breadth cannot satisfy the “identical factual predicate doctrine”\\noutlined by the Second Circuit in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., which limits class\\nreleases to “claims that share the same integral facts as settled claims, provided that the released\\nclaims are adequately represented prior to settlement.” 396 F.3d 96, 106 (2d Cir. 2005). As with\\nthe remainder of the district court’s approval of the Settlement Agreement, we review the district\\ncourt’s determination on this issue for abuse of discretion. Moulton v. U.S. Steel Corp., 581 F.3d\\n344, 349 (6th Cir. 2009).\\n\\n This court has held that “the question is not whether the definition of the claim in the\\ncomplaint and the definition of the claim in the release overlap perfectly; it is whether the\\nreleased claims share a ‘factual predicate’ with the claims pled in the complaint.” Moulton,\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 15\\n\\n\\n581 F.3d at 349 (internal citations omitted). The claims released in the Settlement Agreement\\nshare that factual predicate, as the release specifically cabins the categories of relinquished\\nclaims to those “based upon” or “reasonably related” to the pleadings and claims asserted in the\\nSettlement Agreement. Therefore, the Objectors’ argument that the release covers claims\\n“completely unrelated to the lawsuit” lacks merit. (Cabrera Br. 54 (emphasis in original).)\\n\\n 2. Adequacy of Notice to Class Members\\n\\n Finally, the Objectors claim that the class notice was inadequate to apprise the class\\nmembers of their rights. Rule 23(c)(2)(b) requires the class to provide notice of the nature of the\\naction; the definition of the class certified; the class claims, issues, or defenses; information on\\nhow a class member can enter an appearance with their lawyer; information on how class\\nmembers can opt into or out of the settlement; and the binding effect of the settlement\\nagreement. Additionally, we have held that “due process requires that notice to the class be\\nreasonably calculated, under all the circumstances, to apprise interested parties of the pendency\\nof the action and afford them an opportunity to present their objections.” Vassalle v. Midland\\nFunding LLC, 708 F.3d 747, 759 (6th Cir. 2013). We review the adequacy of class notice de\\nnovo. Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).\\n\\n The notice that the Dancers provided to the class covered all of the bases set out in Rule\\n23(c)(2)(b). Still, the Objectors advance several arguments for why the notice failed to comport\\nwith the due process requirements outlined above.\\n\\n First, the Objectors contend that the notice mischaracterized the scope of the release.\\nThis argument fails. The notice stated that, by staying in the class, a dancer would “give up [the]\\nright to sue Deja Vu . . . on any state law claims later,” and that all class members “will have\\nreleased all Defendants, including all of the Deja Vu–Affiliated Nightclubs, from any further\\nclaims related to the matters raised in this lawsuit” such that class members “cannot ever sue\\nany of the Defendants about these issues based upon conduct that occurred prior to the Effective\\nDate of the settlement.” (Notice of Settlement, R. 37-1, PageID 1036, 1041–42.) The class\\nnotice accurately captured the scope of the release. See supra at 14.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 16\\n\\n\\n Second, the Objectors argue that the notice provided was unclear with respect to how the\\nsettlement would be split among the Dancers. But the Objectors cite no authority that requires a\\nnotice to state how much money each class member would receive, nor do they explain how the\\nnotice could have accurately stated the amount each dancer was eligible to receive from the cash\\npool before knowing the total number of dancers who opted to participate in the cash pool. The\\nnotice appropriately details the two forms of monetary relief, including the total cash pool\\namount and the structure and value of the secondary pool credits, which is reasonable under the\\ncircumstances.\\n\\n Third, the Objectors claim that the notice was deficient because it failed to list “the 10\\nprior-filed class and collective actions against some of these clubs in which class members could\\nhave pursued their claims as an alternative to joining this action.” (Cabrera Br. 55.) For support,\\nthe Objectors point to Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a case in\\nwhich the Objectors claim that the Seventh Circuit reversed the approval of a settlement because\\nof a failure to inform class members of a pending state case. But the Objectors oversell the\\nholding in Mirfasihi, which was rooted in the fact that many class members could have recovered\\nin the pending cases but were entitled to absolutely no recovery in the action in question. See id.\\nat 785. The Seventh Circuit expressly stated that, in other contexts, notice of pending suits is not\\na “requirement[] of an acceptable settlement.” Id. Here, where the Settlement Agreement\\nprovides some monetary relief to every class member and compels Déjà Vu to change its\\nbusiness practices through injunctive relief, failure to provide notice of other pending suits does\\nnot render the class notice unreasonable. For those reasons, the notice comports with the\\nrequirements of due process.\\n\\n III.\\n\\n We affirm the judgment of the district court.\\n\\n Nos. 17-1801/1802/1827 Doe, et al. v. Déjà Vu Consulting, Inc., et al. Page 17\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2483,"cells":{"id":{"kind":"number","value":4626020,"string":"4,626,020"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Dean A. DOUTT, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Dean Doutt"},"decision_date":{"kind":"string","value":"2019-06-04"},"docket_number":{"kind":"string","value":"18-3750"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Rogers, Donald, Thapar\", \"parties\": \"\", \"opinions\": [{\"author\": \"THAPAR, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0116p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-3750\\n v. │\\n │\\n │\\n DEAN A. DOUTT, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Southern District of Ohio at Columbus.\\n No. 2:17-cr-00249-1—Algenon L. Marbley, District Judge.\\n\\n Argued: May 10, 2019\\n\\n Decided and Filed: June 4, 2019\\n\\n Before: ROGERS, DONALD, and THAPAR, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Heather A. Hill, UNITED STATES\\nATTORNEY’S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Dennis Belli, Columbus,\\nOhio, for Appellant. Heather A. Hill, Kimberly Robinson, UNITED STATES ATTORNEY’S\\nOFFICE, Columbus, Ohio, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n THAPAR, Circuit Judge. Dean Doutt pled guilty to receiving child pornography. The\\ndistrict court enhanced his sentence because it found that he had engaged in a “pattern of activity\\ninvolving the sexual abuse or exploitation of a minor.” U.S. Sentencing Guidelines Manual\\n\\f No. 18-3750 United States v. Doutt Page 2\\n\\n\\n§ 2G2.2(b)(5) (U.S. Sentencing Comm’n 2016). But the district court used the wrong legal\\nstandard when it applied this enhancement, so we vacate and remand for resentencing.\\n\\n I.\\n\\n Dean Doutt thought he could secretly obtain child pornography online using a video-\\nconferencing application. He was wrong. Turns out, the federal government was monitoring\\nthat application. So the government charged him with receipt of child pornography.\\n\\n Before pleading guilty, Doutt agreed to undergo a polygraph examination. The examiner\\nasked Doutt about any sexual relations he previously had with minors. Among other incidents,\\nDoutt admitted that he had engaged in sexual activity with a neighborhood boy, M.R., nearly\\nforty years earlier. Doutt stated that he was sixteen and M.R. was “a year or two younger” than\\nDoutt when the activity first started. R. 42, Pg. ID 199. But when pressed by the examiner,\\nDoutt changed his response and recalled that M.R. was eleven or twelve. These sexual\\nencounters with M.R. continued over the next several years.\\n\\n At sentencing, the government recommended an enhancement for a “pattern of activity\\ninvolving the sexual abuse or exploitation of a minor” based on Doutt’s encounters with M.R.\\nU.S.S.G. § 2G2.2(b)(5). Over Doutt’s objections, the district court agreed and applied the\\nenhancement. Doutt now appeals, and we review the district court’s interpretation of the\\nsentencing enhancement de novo. United States v. Gawthrop, 310 F.3d 405, 408 (6th Cir. 2002).\\n\\n II.\\n\\n Doutt claims that the district court used the wrong legal standard when it determined that\\nhe engaged in a “pattern of activity involving . . . sexual abuse.” U.S.S.G. § 2G2.2(b)(5). Under\\nthe Sentencing Commission’s commentary to this enhancement, a “pattern of activity” means\\n“any combination of two or more separate instances of . . . sexual abuse . . . of a minor.”\\nU.S.S.G. § 2G2.2 cmt. n.1. “Sexual abuse” is defined by reference to various criminal statutes—\\nincluding one that forbids sexual activity with a minor between the ages of twelve and sixteen “if\\nthe perpetrator was at least four years older than” the minor. 18 U.S.C. § 2243(a); Esquivel-\\nQuintana v. Sessions, 137 S. Ct. 1562, 1570–71 (2017). The district court concluded that Doutt\\n\\f No. 18-3750 United States v. Doutt Page 3\\n\\n\\nwas at least four years older than M.R. because Doutt said he had sexual relations with M.R.\\nwhen Doutt was sixteen and M.R. was either eleven or twelve. Since there was no other\\nevidence of M.R.’s or Doutt’s actual ages, the district court based its conclusion entirely on\\nDoutt’s statement.\\n\\n Doutt argues that the district court erred when it simply took his age (sixteen), subtracted\\nM.R.’s age (eleven or twelve), and concluded that Doutt was four years older than M.R. Doutt is\\ncorrect, but to understand why we must look behind the numbers. On the one hand, Doutt could\\nhave been one day shy of his seventeenth birthday, and M.R. could have just turned twelve—\\nessentially a five-year age difference. But on the other hand, Doutt could have just celebrated his\\nsixteenth birthday the day before M.R. turned thirteen—essentially a three-year age difference.\\nMost people would understand a distinction between these two worlds. Yet the district court’s\\nstandard would apply the same punishment for Doutt’s conduct in either situation—in a way that\\nis “random and somewhat meaningless.” United States v. Black, 773 F.3d 1113, 1117 (10th Cir.\\n2014).\\n\\n A more straightforward, precise standard is available. A “year” means either “twelve\\ncalendar months” or “[a] consecutive 365-day period.” See Black’s Law Dictionary (10th ed.\\n2014). As early as 45 B.C., Julius Caesar recognized the need for a 365-day year (with an extra\\nday added on every four years for leap years). Plutarch, The Life of Julius Caesar, in Plutarch’s\\nLives, Volume II 237 (Arthur Hugh Clough ed. 2001); Adrian Goldsworthy, Caesar: Life of a\\nColossus 479 (2006). Although Pope Gregory XIII modified Caesar’s calendar in 1582 and\\nmade some adjustments to leap years, one thing remained the same: a year under the pope’s\\ncalendar still consisted of 365 days. Steve Hendrix, On New Year’s, Our Calendar’s Crazy\\nHistory, and the Switch that Changed Washington’s Birthday, Wash. Post (Dec. 31, 2017),\\nhttps://www.washingtonpost.com/news/retropolis/wp/2017/12/31/on-new-years-our-calendars-\\ncrazy-history-and-the-switch-that-changed-washingtons-birthday/?utm_term=.89197ee9eb77.1\\n\\n\\n 1Even the Founders dealt with these calendar dilemmas. Great Britain (and her American colonies)\\ncontinued to use Caesar’s calendar until 1752. So when George Washington was born in 1732, Caesar’s calendar\\nmarked the day as February 11. However, once Great Britain shifted to the Pope’s calendar, Washington’s birthday\\nbecame February 22, the day we all—particularly “mattress and furniture stores”—presently observe. Hendrix,\\nsupra.\\n\\f No. 18-3750 United States v. Doutt Page 4\\n\\n\\nFor over two thousand years, then, a year has meant 365 days. While other countries have\\nadopted different calendars at different times, a year has never meant anything less in the United\\nStates. That unbroken history makes the statute in this case clear: “at least four years” older\\nmeans at least 1,461 days (365 multiplied by four, plus one leap day) or 48 months older. Two\\nof our sister circuits have adopted this days-and-months standard when calculating age\\ndifferences under analogous statutes. Black, 773 F.3d at 1115; United States v. Brown, 740 F.3d\\n145, 149–50, 150 n.8 (3d Cir. 2014). One state court was so precise that its calculation came\\ndown to the hours of birth. See Commonwealth v. Price, 189 A.3d 423, 431–32 (Pa. Super. Ct.\\n2018) (vacating the convictions of twin brothers for sexual assault when the statute required that\\nthe twin brothers be “four years older” and the brothers were only 3 years, 364 days, and 10\\nhours older than the victim). Thus, this straightforward days-and-months approach applies to\\n18 U.S.C. § 2243.\\n\\n What is not straightforward, however, is whether Doutt was at least 1,461 days older than\\nM.R. If we had both Doutt’s and M.R.’s birthdays, we could easily compute the age difference.\\nCf. Black, 773 F.3d at 1114. But we do not have those dates. Instead, we have one statement:\\nDoutt said that he was sixteen years old, and M.R. was “closer to 11 or 12 years of age.” 2 R. 42,\\nPg. ID 199. That statement is simply not enough to conclude that Doutt was “at least four years”\\nolder than M.R. Again, the age difference could have been merely three years and one day. Cf.\\nBlack, 773 F.3d at 1116–17.\\n\\n The government does not tackle this argument head-on but rather argues that plain error\\nreview applies because Doutt did not raise this argument before the district court. But Doutt did\\nraise this argument: he explicitly stated that there could have been a mere “three-year age\\ndifference” between him and M.R. R. 42, Pg. ID 204. Although he never used the words\\n“days” and “months” to explain his argument, Doutt did contend that there was insufficient\\nevidence to show a four-year age difference. That was enough to preserve his argument, and\\n\\n\\n 2If M.R. was eleven years old, § 2243 does not even apply. Section 2243 only applies if the victim “has\\nattained the age of 12 years.” 18 U.S.C. § 2243(a)(1). An entirely different statute covers victims that are eleven\\nyears old or younger. See 18 U.S.C. § 2241(c). Because the district court based Doutt’s enhancement entirely on\\n§ 2243—and because there is not any evidence in the record to suggest that M.R. was more likely eleven years old\\nthan twelve—we confine our analysis to § 2243.\\n\\f No. 18-3750 United States v. Doutt Page 5\\n\\n\\nunder de novo review, the district court erred by applying the enhancement without precisely\\ncalculating the age difference between Doutt and M.R.\\n\\n One final point: on remand, the government may introduce further evidence to prove that\\nDoutt was “at least four years” older than M.R. Sometimes the government is precluded from\\npresenting new evidence at resentencing. United States v. Goodman, 519 F.3d 310, 323 (6th Cir.\\n2008). Yet the origins of this ban are murky. See United States v. Matthews, 278 F.3d 880, 887–\\n88 (9th Cir. 2002) (en banc). Thus, we have noted that “special circumstances” can permit the\\ngovernment to introduce new evidence on remand. Goodman, 519 F.3d at 323 (quoting United\\nStates v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)). This case presents one such special\\ncircumstance. The government had no reason to present evidence about the days separating\\nDoutt and M.R. because the district court did not apply a days-and-months approach. When a\\ndistrict court applies the wrong legal standard at sentencing, the government may introduce\\nadditional evidence on remand that comports with the appropriate legal standard. United States\\nv. Baker, 559 F.3d 443, 455 & n.10 (6th Cir. 2009); cf. Matthews, 278 F.3d at 888–89. Because\\nwe hold for the first time that an age difference under 18 U.S.C. § 2243(a) must be calculated\\nusing days and months—not whole years—the government can introduce new evidence at\\nresentencing to bolster its claim that Doutt was “at least four years” older than M.R.\\n\\n * * *\\n\\n Dean Doutt might very well have been “at least four years” older than M.R. But the\\ndistrict court did not make this determination using the correct legal standard. Accordingly, we\\nvacate Doutt’s sentence and remand for resentencing consistent with this opinion.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4403273/\", \"author_raw\": \"THAPAR, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"ROGERS"},"judge2":{"kind":"string","value":"DONALD"},"judge3":{"kind":"string","value":"THAPAR"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4626020/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Dean A. DOUTT, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0116p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-3750\n v. │\n │\n │\n DEAN A. DOUTT, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Southern District of Ohio at Columbus.\n No. 2:17-cr-00249-1—Algenon L. Marbley, District Judge.\n\n Argued: May 10, 2019\n\n Decided and Filed: June 4, 2019\n\n Before: ROGERS, DONALD, and THAPAR, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Heather A. Hill, UNITED STATES\nATTORNEY’S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Dennis Belli, Columbus,\nOhio, for Appellant. Heather A. Hill, Kimberly Robinson, UNITED STATES ATTORNEY’S\nOFFICE, Columbus, Ohio, for Appellee.\n _________________\n\n OPINION\n _________________\n\n THAPAR, Circuit Judge. Dean Doutt pled guilty to receiving child pornography. The\ndistrict court enhanced his sentence because it found that he had engaged in a “pattern of activity\ninvolving the sexual abuse or exploitation of a minor.” U.S. Sentencing Guidelines Manual\n\f No. 18-3750 United States v. Doutt Page 2\n\n\n§ 2G2.2(b)(5) (U.S. Sentencing Comm’n 2016). But the district court used the wrong legal\nstandard when it applied this enhancement, so we vacate and remand for resentencing.\n\n I.\n\n Dean Doutt thought he could secretly obtain child pornography online using a video-\nconferencing application. He was wrong. Turns out, the federal government was monitoring\nthat application. So the government charged him with receipt of child pornography.\n\n Before pleading guilty, Doutt agreed to undergo a polygraph examination. The examiner\nasked Doutt about any sexual relations he previously had with minors. Among other incidents,\nDoutt admitted that he had engaged in sexual activity with a neighborhood boy, M.R., nearly\nforty years earlier. Doutt stated that he was sixteen and M.R. was “a year or two younger” than\nDoutt when the activity first started. R. 42, Pg. ID 199. But when pressed by the examiner,\nDoutt changed his response and recalled that M.R. was eleven or twelve. These sexual\nencounters with M.R. continued over the next several years.\n\n At sentencing, the government recommended an enhancement for a “pattern of activity\ninvolving the sexual abuse or exploitation of a minor” based on Doutt’s encounters with M.R.\nU.S.S.G. § 2G2.2(b)(5). Over Doutt’s objections, the district court agreed and applied the\nenhancement. Doutt now appeals, and we review the district court’s interpretation of the\nsentencing enhancement de novo. United States v. Gawthrop, 310 F.3d 405, 408 (6th Cir. 2002).\n\n II.\n\n Doutt claims that the district court used the wrong legal standard when it determined that\nhe engaged in a “pattern of activity involving . . . sexual abuse.” U.S.S.G. § 2G2.2(b)(5). Under\nthe Sentencing Commission’s commentary to this enhancement, a “pattern of activity” means\n“any combination of two or more separate instances of . . . sexual abuse . . . of a minor.”\nU.S.S.G. § 2G2.2 cmt. n.1. “Sexual abuse” is defined by reference to various criminal statutes—\nincluding one that forbids sexual activity with a minor between the ages of twelve and sixteen “if\nthe perpetrator was at least four years older than” the minor. 18 U.S.C. § 2243(a); Esquivel-\nQuintana v. Sessions, 137 S. Ct. 1562, 1570–71 (2017). The district court concluded that Doutt\n\f No. 18-3750 United States v. Doutt Page 3\n\n\nwas at least four years older than M.R. because Doutt said he had sexual relations with M.R.\nwhen Doutt was sixteen and M.R. was either eleven or twelve. Since there was no other\nevidence of M.R.’s or Doutt’s actual ages, the district court based its conclusion entirely on\nDoutt’s statement.\n\n Doutt argues that the district court erred when it simply took his age (sixteen), subtracted\nM.R.’s age (eleven or twelve), and concluded that Doutt was four years older than M.R. Doutt is\ncorrect, but to understand why we must look behind the numbers. On the one hand, Doutt could\nhave been one day shy of his seventeenth birthday, and M.R. could have just turned twelve—\nessentially a five-year age difference. But on the other hand, Doutt could have just celebrated his\nsixteenth birthday the day before M.R. turned thirteen—essentially a three-year age difference.\nMost people would understand a distinction between these two worlds. Yet the district court’s\nstandard would apply the same punishment for Doutt’s conduct in either situation—in a way that\nis “random and somewhat meaningless.” United States v. Black, 773 F.3d 1113, 1117 (10th Cir.\n2014).\n\n A more straightforward, precise standard is available. A “year” means either “twelve\ncalendar months” or “[a] consecutive 365-day period.” See Black’s Law Dictionary (10th ed.\n2014). As early as 45 B.C., Julius Caesar recognized the need for a 365-day year (with an extra\nday added on every four years for leap years). Plutarch, The Life of Julius Caesar, in Plutarch’s\nLives, Volume II 237 (Arthur Hugh Clough ed. 2001); Adrian Goldsworthy, Caesar: Life of a\nColossus 479 (2006). Although Pope Gregory XIII modified Caesar’s calendar in 1582 and\nmade some adjustments to leap years, one thing remained the same: a year under the pope’s\ncalendar still consisted of 365 days. Steve Hendrix, On New Year’s, Our Calendar’s Crazy\nHistory, and the Switch that Changed Washington’s Birthday, Wash. Post (Dec. 31, 2017),\nhttps://www.washingtonpost.com/news/retropolis/wp/2017/12/31/on-new-years-our-calendars-\ncrazy-history-and-the-switch-that-changed-washingtons-birthday/?utm_term=.89197ee9eb77.1\n\n\n 1Even the Founders dealt with these calendar dilemmas. Great Britain (and her American colonies)\ncontinued to use Caesar’s calendar until 1752. So when George Washington was born in 1732, Caesar’s calendar\nmarked the day as February 11. However, once Great Britain shifted to the Pope’s calendar, Washington’s birthday\nbecame February 22, the day we all—particularly “mattress and furniture stores”—presently observe. Hendrix,\nsupra.\n\f No. 18-3750 United States v. Doutt Page 4\n\n\nFor over two thousand years, then, a year has meant 365 days. While other countries have\nadopted different calendars at different times, a year has never meant anything less in the United\nStates. That unbroken history makes the statute in this case clear: “at least four years” older\nmeans at least 1,461 days (365 multiplied by four, plus one leap day) or 48 months older. Two\nof our sister circuits have adopted this days-and-months standard when calculating age\ndifferences under analogous statutes. Black, 773 F.3d at 1115; United States v. Brown, 740 F.3d\n145, 149–50, 150 n.8 (3d Cir. 2014). One state court was so precise that its calculation came\ndown to the hours of birth. See Commonwealth v. Price, 189 A.3d 423, 431–32 (Pa. Super. Ct.\n2018) (vacating the convictions of twin brothers for sexual assault when the statute required that\nthe twin brothers be “four years older” and the brothers were only 3 years, 364 days, and 10\nhours older than the victim). Thus, this straightforward days-and-months approach applies to\n18 U.S.C. § 2243.\n\n What is not straightforward, however, is whether Doutt was at least 1,461 days older than\nM.R. If we had both Doutt’s and M.R.’s birthdays, we could easily compute the age difference.\nCf. Black, 773 F.3d at 1114. But we do not have those dates. Instead, we have one statement:\nDoutt said that he was sixteen years old, and M.R. was “closer to 11 or 12 years of age.” 2 R. 42,\nPg. ID 199. That statement is simply not enough to conclude that Doutt was “at least four years”\nolder than M.R. Again, the age difference could have been merely three years and one day. Cf.\nBlack, 773 F.3d at 1116–17.\n\n The government does not tackle this argument head-on but rather argues that plain error\nreview applies because Doutt did not raise this argument before the district court. But Doutt did\nraise this argument: he explicitly stated that there could have been a mere “three-year age\ndifference” between him and M.R. R. 42, Pg. ID 204. Although he never used the words\n“days” and “months” to explain his argument, Doutt did contend that there was insufficient\nevidence to show a four-year age difference. That was enough to preserve his argument, and\n\n\n 2If M.R. was eleven years old, § 2243 does not even apply. Section 2243 only applies if the victim “has\nattained the age of 12 years.” 18 U.S.C. § 2243(a)(1). An entirely different statute covers victims that are eleven\nyears old or younger. See 18 U.S.C. § 2241(c). Because the district court based Doutt’s enhancement entirely on\n§ 2243—and because there is not any evidence in the record to suggest that M.R. was more likely eleven years old\nthan twelve—we confine our analysis to § 2243.\n\f No. 18-3750 United States v. Doutt Page 5\n\n\nunder de novo review, the district court erred by applying the enhancement without precisely\ncalculating the age difference between Doutt and M.R.\n\n One final point: on remand, the government may introduce further evidence to prove that\nDoutt was “at least four years” older than M.R. Sometimes the government is precluded from\npresenting new evidence at resentencing. United States v. Goodman, 519 F.3d 310, 323 (6th Cir.\n2008). Yet the origins of this ban are murky. See United States v. Matthews, 278 F.3d 880, 887–\n88 (9th Cir. 2002) (en banc). Thus, we have noted that “special circumstances” can permit the\ngovernment to introduce new evidence on remand. Goodman, 519 F.3d at 323 (quoting United\nStates v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)). This case presents one such special\ncircumstance. The government had no reason to present evidence about the days separating\nDoutt and M.R. because the district court did not apply a days-and-months approach. When a\ndistrict court applies the wrong legal standard at sentencing, the government may introduce\nadditional evidence on remand that comports with the appropriate legal standard. United States\nv. Baker, 559 F.3d 443, 455 & n.10 (6th Cir. 2009); cf. Matthews, 278 F.3d at 888–89. Because\nwe hold for the first time that an age difference under 18 U.S.C. § 2243(a) must be calculated\nusing days and months—not whole years—the government can introduce new evidence at\nresentencing to bolster its claim that Doutt was “at least four years” older than M.R.\n\n * * *\n\n Dean Doutt might very well have been “at least four years” older than M.R. But the\ndistrict court did not make this determination using the correct legal standard. Accordingly, we\nvacate Doutt’s sentence and remand for resentencing consistent with this opinion.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Dean A. DOUTT, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0116p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-3750\\n v. │\\n │\\n │\\n DEAN A. DOUTT, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Southern District of Ohio at Columbus.\\n No. 2:17-cr-00249-1—Algenon L. Marbley, District Judge.\\n\\n Argued: May 10, 2019\\n\\n Decided and Filed: June 4, 2019\\n\\n Before: ROGERS, DONALD, and THAPAR, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Heather A. Hill, UNITED STATES\\nATTORNEY’S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Dennis Belli, Columbus,\\nOhio, for Appellant. Heather A. Hill, Kimberly Robinson, UNITED STATES ATTORNEY’S\\nOFFICE, Columbus, Ohio, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n THAPAR, Circuit Judge. Dean Doutt pled guilty to receiving child pornography. The\\ndistrict court enhanced his sentence because it found that he had engaged in a “pattern of activity\\ninvolving the sexual abuse or exploitation of a minor.” U.S. Sentencing Guidelines Manual\\n\\f No. 18-3750 United States v. Doutt Page 2\\n\\n\\n§ 2G2.2(b)(5) (U.S. Sentencing Comm’n 2016). But the district court used the wrong legal\\nstandard when it applied this enhancement, so we vacate and remand for resentencing.\\n\\n I.\\n\\n Dean Doutt thought he could secretly obtain child pornography online using a video-\\nconferencing application. He was wrong. Turns out, the federal government was monitoring\\nthat application. So the government charged him with receipt of child pornography.\\n\\n Before pleading guilty, Doutt agreed to undergo a polygraph examination. The examiner\\nasked Doutt about any sexual relations he previously had with minors. Among other incidents,\\nDoutt admitted that he had engaged in sexual activity with a neighborhood boy, M.R., nearly\\nforty years earlier. Doutt stated that he was sixteen and M.R. was “a year or two younger” than\\nDoutt when the activity first started. R. 42, Pg. ID 199. But when pressed by the examiner,\\nDoutt changed his response and recalled that M.R. was eleven or twelve. These sexual\\nencounters with M.R. continued over the next several years.\\n\\n At sentencing, the government recommended an enhancement for a “pattern of activity\\ninvolving the sexual abuse or exploitation of a minor” based on Doutt’s encounters with M.R.\\nU.S.S.G. § 2G2.2(b)(5). Over Doutt’s objections, the district court agreed and applied the\\nenhancement. Doutt now appeals, and we review the district court’s interpretation of the\\nsentencing enhancement de novo. United States v. Gawthrop, 310 F.3d 405, 408 (6th Cir. 2002).\\n\\n II.\\n\\n Doutt claims that the district court used the wrong legal standard when it determined that\\nhe engaged in a “pattern of activity involving . . . sexual abuse.” U.S.S.G. § 2G2.2(b)(5). Under\\nthe Sentencing Commission’s commentary to this enhancement, a “pattern of activity” means\\n“any combination of two or more separate instances of . . . sexual abuse . . . of a minor.”\\nU.S.S.G. § 2G2.2 cmt. n.1. “Sexual abuse” is defined by reference to various criminal statutes—\\nincluding one that forbids sexual activity with a minor between the ages of twelve and sixteen “if\\nthe perpetrator was at least four years older than” the minor. 18 U.S.C. § 2243(a); Esquivel-\\nQuintana v. Sessions, 137 S. Ct. 1562, 1570–71 (2017). The district court concluded that Doutt\\n\\f No. 18-3750 United States v. Doutt Page 3\\n\\n\\nwas at least four years older than M.R. because Doutt said he had sexual relations with M.R.\\nwhen Doutt was sixteen and M.R. was either eleven or twelve. Since there was no other\\nevidence of M.R.’s or Doutt’s actual ages, the district court based its conclusion entirely on\\nDoutt’s statement.\\n\\n Doutt argues that the district court erred when it simply took his age (sixteen), subtracted\\nM.R.’s age (eleven or twelve), and concluded that Doutt was four years older than M.R. Doutt is\\ncorrect, but to understand why we must look behind the numbers. On the one hand, Doutt could\\nhave been one day shy of his seventeenth birthday, and M.R. could have just turned twelve—\\nessentially a five-year age difference. But on the other hand, Doutt could have just celebrated his\\nsixteenth birthday the day before M.R. turned thirteen—essentially a three-year age difference.\\nMost people would understand a distinction between these two worlds. Yet the district court’s\\nstandard would apply the same punishment for Doutt’s conduct in either situation—in a way that\\nis “random and somewhat meaningless.” United States v. Black, 773 F.3d 1113, 1117 (10th Cir.\\n2014).\\n\\n A more straightforward, precise standard is available. A “year” means either “twelve\\ncalendar months” or “[a] consecutive 365-day period.” See Black’s Law Dictionary (10th ed.\\n2014). As early as 45 B.C., Julius Caesar recognized the need for a 365-day year (with an extra\\nday added on every four years for leap years). Plutarch, The Life of Julius Caesar, in Plutarch’s\\nLives, Volume II 237 (Arthur Hugh Clough ed. 2001); Adrian Goldsworthy, Caesar: Life of a\\nColossus 479 (2006). Although Pope Gregory XIII modified Caesar’s calendar in 1582 and\\nmade some adjustments to leap years, one thing remained the same: a year under the pope’s\\ncalendar still consisted of 365 days. Steve Hendrix, On New Year’s, Our Calendar’s Crazy\\nHistory, and the Switch that Changed Washington’s Birthday, Wash. Post (Dec. 31, 2017),\\nhttps://www.washingtonpost.com/news/retropolis/wp/2017/12/31/on-new-years-our-calendars-\\ncrazy-history-and-the-switch-that-changed-washingtons-birthday/?utm_term=.89197ee9eb77.1\\n\\n\\n 1Even the Founders dealt with these calendar dilemmas. Great Britain (and her American colonies)\\ncontinued to use Caesar’s calendar until 1752. So when George Washington was born in 1732, Caesar’s calendar\\nmarked the day as February 11. However, once Great Britain shifted to the Pope’s calendar, Washington’s birthday\\nbecame February 22, the day we all—particularly “mattress and furniture stores”—presently observe. Hendrix,\\nsupra.\\n\\f No. 18-3750 United States v. Doutt Page 4\\n\\n\\nFor over two thousand years, then, a year has meant 365 days. While other countries have\\nadopted different calendars at different times, a year has never meant anything less in the United\\nStates. That unbroken history makes the statute in this case clear: “at least four years” older\\nmeans at least 1,461 days (365 multiplied by four, plus one leap day) or 48 months older. Two\\nof our sister circuits have adopted this days-and-months standard when calculating age\\ndifferences under analogous statutes. Black, 773 F.3d at 1115; United States v. Brown, 740 F.3d\\n145, 149–50, 150 n.8 (3d Cir. 2014). One state court was so precise that its calculation came\\ndown to the hours of birth. See Commonwealth v. Price, 189 A.3d 423, 431–32 (Pa. Super. Ct.\\n2018) (vacating the convictions of twin brothers for sexual assault when the statute required that\\nthe twin brothers be “four years older” and the brothers were only 3 years, 364 days, and 10\\nhours older than the victim). Thus, this straightforward days-and-months approach applies to\\n18 U.S.C. § 2243.\\n\\n What is not straightforward, however, is whether Doutt was at least 1,461 days older than\\nM.R. If we had both Doutt’s and M.R.’s birthdays, we could easily compute the age difference.\\nCf. Black, 773 F.3d at 1114. But we do not have those dates. Instead, we have one statement:\\nDoutt said that he was sixteen years old, and M.R. was “closer to 11 or 12 years of age.” 2 R. 42,\\nPg. ID 199. That statement is simply not enough to conclude that Doutt was “at least four years”\\nolder than M.R. Again, the age difference could have been merely three years and one day. Cf.\\nBlack, 773 F.3d at 1116–17.\\n\\n The government does not tackle this argument head-on but rather argues that plain error\\nreview applies because Doutt did not raise this argument before the district court. But Doutt did\\nraise this argument: he explicitly stated that there could have been a mere “three-year age\\ndifference” between him and M.R. R. 42, Pg. ID 204. Although he never used the words\\n“days” and “months” to explain his argument, Doutt did contend that there was insufficient\\nevidence to show a four-year age difference. That was enough to preserve his argument, and\\n\\n\\n 2If M.R. was eleven years old, § 2243 does not even apply. Section 2243 only applies if the victim “has\\nattained the age of 12 years.” 18 U.S.C. § 2243(a)(1). An entirely different statute covers victims that are eleven\\nyears old or younger. See 18 U.S.C. § 2241(c). Because the district court based Doutt’s enhancement entirely on\\n§ 2243—and because there is not any evidence in the record to suggest that M.R. was more likely eleven years old\\nthan twelve—we confine our analysis to § 2243.\\n\\f No. 18-3750 United States v. Doutt Page 5\\n\\n\\nunder de novo review, the district court erred by applying the enhancement without precisely\\ncalculating the age difference between Doutt and M.R.\\n\\n One final point: on remand, the government may introduce further evidence to prove that\\nDoutt was “at least four years” older than M.R. Sometimes the government is precluded from\\npresenting new evidence at resentencing. United States v. Goodman, 519 F.3d 310, 323 (6th Cir.\\n2008). Yet the origins of this ban are murky. See United States v. Matthews, 278 F.3d 880, 887–\\n88 (9th Cir. 2002) (en banc). Thus, we have noted that “special circumstances” can permit the\\ngovernment to introduce new evidence on remand. Goodman, 519 F.3d at 323 (quoting United\\nStates v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)). This case presents one such special\\ncircumstance. The government had no reason to present evidence about the days separating\\nDoutt and M.R. because the district court did not apply a days-and-months approach. When a\\ndistrict court applies the wrong legal standard at sentencing, the government may introduce\\nadditional evidence on remand that comports with the appropriate legal standard. United States\\nv. Baker, 559 F.3d 443, 455 & n.10 (6th Cir. 2009); cf. Matthews, 278 F.3d at 888–89. Because\\nwe hold for the first time that an age difference under 18 U.S.C. § 2243(a) must be calculated\\nusing days and months—not whole years—the government can introduce new evidence at\\nresentencing to bolster its claim that Doutt was “at least four years” older than M.R.\\n\\n * * *\\n\\n Dean Doutt might very well have been “at least four years” older than M.R. But the\\ndistrict court did not make this determination using the correct legal standard. Accordingly, we\\nvacate Doutt’s sentence and remand for resentencing consistent with this opinion.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2484,"cells":{"id":{"kind":"number","value":4626021,"string":"4,626,021"},"name":{"kind":"string","value":"John DOE, Plaintiff-Appellant, v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"John Doe v. BlueCross BlueShield of Tenn., Inc."},"decision_date":{"kind":"string","value":"2019-06-04"},"docket_number":{"kind":"string","value":"18-5897"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Guy, Sutton, Nalbandian\", \"parties\": \"\", \"opinions\": [{\"author\": \"SUTTON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0115p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n JOHN DOE, ┐\\n Plaintiff-Appellant, │\\n │\\n > No. 18-5897\\n v. │\\n │\\n │\\n BLUECROSS BLUESHIELD OF TENNESSEE, INC., │\\n Defendant-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Western District of Tennessee at Memphis.\\n No. 2:17-cv-02793—Thomas L. Parker, District Judge.\\n\\n Argued: May 1, 2019\\n\\n Decided and Filed: June 4, 2019\\n\\n Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Jerry Flanagan, CONSUMER WATCHDOG, Los Angeles, California, for\\nAppellant. Todd Kim, REED SMITH LLP, Washington, D.C., for Appellee. ON BRIEF: Jerry\\nFlanagan, CONSUMER WATCHDOG, Los Angeles, California, Edith M. Kallas, WHATLEY\\nKALLAS, LLP, New York, New York, Alan M. Mansfield, WHATLEY KALLAS, LLP, San\\nDiego, California, Jerry Martin, Seth M. Hyatt, BARRETT JOHNSTON MARTIN &\\nGARRISON, LLC, Nashville, Tennessee, for Appellant. Todd Kim, REED SMITH LLP,\\nWashington, D.C., Bryan M. Webster, Abraham Judson Souza, REED SMITH LLP, Chicago,\\nIllinois, for Appellee.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n SUTTON, Circuit Judge. Treating similarly situated people differently goes to the heart\\nof invidious discrimination. But treating differently situated people differently usually counts as\\nequal justice under law. Today’s case involves the second scenario in the context of an\\napplication of the antidiscrimination provisions of the Affordable Care Act.\\n\\n John Doe receives HIV medicine through a health care plan administered by BlueCross\\nBlueShield of Tennessee. Although Doe would like to pick up his medicine at his local\\npharmacy, his plan requires him, and anyone else who uses certain high-cost drugs, to get his\\nmedicine by mail or at a specialty pharmacy. Frustrated by that requirement, Doe sued\\nBlueCross for discriminating against him on the basis of disability and for breaching their\\ncontract. The district court rejected the claims as a matter of law. We affirm.\\n\\n I.\\n\\n John Doe is HIV-positive and takes Genvoya to keep his condition under control. While\\nadvances in HIV/AIDS research continue to improve treatment for the disease, the most effective\\nmedicines can be expensive. Doe receives health insurance from BlueCross. Happily for him,\\nthe plan covers Genvoya.\\n\\n Unhappily for him, BlueCross imposes requirements on where individuals obtain the\\nmedication. Doe originally bought Genvoya from his local pharmacy. But after February 2017,\\nthe pharmacy told him that BlueCross wouldn’t pay for the medication there any longer.\\nBlueCross requires beneficiaries to obtain specialty medicines—usually high-cost medicines for\\nchronic and serious diseases—from a specialty pharmacy network if they want to pay in-network\\n(read lower) prices. That meant Doe could fill the HIV prescription only through mail order or\\nby picking it up at certain brick-and-mortar pharmacies. So long as Doe used the specialty\\npharmacy network, his co-pay for each monthly batch of Genvoya would be $120. But if Doe\\ncontinued to get the medicine at his local pharmacy, BlueCross wouldn’t cover it at all, leaving\\nhim to pay full freight at thousands of dollars per batch.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 3\\n\\n\\n This development bothered Doe. He liked interacting with his regular pharmacists, who\\nknew his medical history and who could spot the effects of harmful drug interactions. He also\\nworried that medicine deliveries to his house might compromise his privacy or risk heat damage\\nto the medicine. Doe asked BlueCross for permission to opt out of the specialty medications\\nprogram. BlueCross declined.\\n\\n Doe filed this putative class action against BlueCross, alleging that it discriminated\\nagainst him and other HIV-positive beneficiaries in violation of the Affordable Care Act as well\\nas the Americans with Disabilities Act and that it breached their insurance contract. The district\\ncourt granted BlueCross’s motion to dismiss the complaint and denied Doe leave to amend.\\n\\n II.\\n\\n The Affordable Care Act claim. Doe contends that BlueCross discriminated against him\\non the basis of disability in violation of § 1557 of the Patient Protection and Affordable Care\\nAct. The argument implicates two questions. Does the standard of liability include a relaxed\\nform of disparate-impact discrimination? May Doe bring a private lawsuit to enforce the claim?\\n\\n As for the standard of liability, the language of the statute is a good place to start. The\\nfirst sentence of § 1557 provides that “an individual shall not, on the ground prohibited under\\ntitle VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age\\nDiscrimination Act of 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from\\nparticipation in, be denied the benefits of, or be subjected to discrimination under, any health\\nprogram or activity, any part of which is receiving Federal financial assistance.” 42 U.S.C.\\n§ 18116(a). This language brings the problem into view. Doe thinks that some of the\\nincorporated statutes permit discrimination claims based on a relaxed disparate-impact theory of\\nliability and that some of them do not. As he sees it, he may pick the statute with the lightest\\nstandard from this menu of four options and use that standard of liability in prosecuting his claim\\nfor disability discrimination.\\n\\n The statute does not permit this reading. In the abstract, the word “ground” picks up the\\nbasis on which the insurer takes an action. See 6 Oxford English Dictionary 876 (2d ed. 1989).\\nIn the concrete context of this law, the word “ground” refers to the forbidden source of\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 4\\n\\n\\ndiscrimination: race, color, and national origin (Title VI); sex (Title IX); age (Age\\nDiscrimination Act); and disability (Rehabilitation Act). When “ground” is paired with\\n“prohibited,” as in “on the ground prohibited,” the statute picks up the type of discrimination—\\nthe standard for determining discrimination—prohibited under each of the four incorporated\\nstatutes. If the claimant seeks relief for discrimination “on the ground prohibited” by § 504 of\\nthe Rehabilitation Act, for example, he must show differential treatment “solely by reason of”\\ndisability, 29 U.S.C. § 794(a), not some other standard of care. See Lewis v. Humboldt\\nAcquisition Corp., 681 F.3d 312, 315–16 (6th Cir. 2012) (en banc). Otherwise, the health\\ninsurer’s actions do not amount to the kind of “discrimination” barred by the law.\\n\\n Think of it this way. The Affordable Care Act prohibits discrimination based on several\\ngrounds. But it does not change the nature of those grounds any more than it adds a new form of\\ndiscrimination, say discrimination based on political perspective, to the law. By referring to four\\nstatutes, Congress incorporated the legal standards that define discrimination under each one.\\nSee Panama R. Co. v. Johnson, 264 U.S. 375, 392 (1924).\\n\\n The second sentence of the section reinforces this conclusion. It says that “[t]he\\nenforcement mechanisms provided for and available under such title VI, title IX, section 504, or\\nsuch Age Discrimination Act shall apply for purposes of violations of this subsection.”\\n42 U.S.C. § 18116(a). “Enforcement” refers to compelling adherence to the duty in each law.\\n5 Oxford English Dictionary, supra, at 245. And a “mechanism” is the means of producing each\\nend. 9 id. at 536. The phrase “enforcement mechanism” thus covers the distinct methods\\navailable under the four listed statutes for compelling compliance with the substantive\\nrequirements of each statute. If the first sentence created a brand-new single standard for what\\nqualifies as discrimination, why would Congress use four distinct families of enforcement\\nmechanisms to compel compliance with that standard rather than creating a matching single\\nmechanism? We can think of no answer. Here, as is so often the case, Occam’s Razor provides\\na handy guide.\\n\\n Pulling all of this together, the statute prohibits discrimination against the disabled in the\\nprovision of federally supported health programs under § 504 of the Rehabilitation Act. In doing\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 5\\n\\n\\nso, the Affordable Care Act picks up the standard of care for showing a violation of § 504, not\\nthe other laws incorporated by the statute or for that matter any other statute.\\n\\n This approach also makes short work of the second statutory question: May Doe enforce\\nthe law through a private right of action? Yes. Because the Rehabilitation Act contains a private\\nright of action, see Barnes v. Gorman, 536 U.S. 181, 185 (2002), the enforcement mechanism\\nsentence permits Doe to bring this lawsuit to enforce that prohibition under the Affordable Care\\nAct as well.\\n\\n Doe accepts some of this analysis. He agrees that the Act gives him a private cause of\\naction to sue for disability discrimination for the reasons just given. But he thinks the\\nenforcement mechanism sentence allows him to use any of the four substantive legal standards\\nfor proving discrimination and apply it to any of the four classifications.\\n\\n Picking your own adventure, however, is not what that sentence says. The phrase\\n“enforcement mechanism” refers to the process for compelling compliance with a substantive\\nright, not the substantive right itself. As we have said before, in interpreting § 504 of the\\nRehabilitation Act no less, “[e]nforcement provisions generally do not alter substantive standards\\nof care.” Lewis, 681 F.3d at 316. Had Congress wished to make all of the enforcement\\nmechanisms available for any classification, it would have said “[t]he enforcement mechanisms\\nprovided for and available under title VI, title IX, section 504, and such Age Discrimination Act\\nshall apply”—instead of the or it opted to use.\\n\\n Context does Doe’s argument no favors either. Each antidiscrimination statute has its\\nown highly reticulated set of enforcement rules adapted for the type of discrimination that each\\nlaw targets. For example, Title VI, Title IX, and § 504 do not require the exhaustion of\\nadministrative remedies before bringing a private cause of action, while the Age Discrimination\\nAct does. See 42 U.S.C. § 6104(e)(2), (f) (Age Discrimination Act); Cannon v. Univ. of Chi.,\\n441 U.S. 677, 706 n.41 (1979) (Title IX); Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465,\\n470–71 (6th Cir. 1993) (§ 504); Neighborhood Action Coal. v. City of Canton, 882 F.2d 1012,\\n1015 (6th Cir. 1989) (Title VI). And while Title VI, Title IX, and § 504 allow the recovery of\\ncompensatory damages, the Age Discrimination Act does not. See 42 U.S.C. § 6104(e)\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 6\\n\\n\\n(Age Discrimination Act); Barnes, 536 U.S. at 185–89 (Title VI, Title IX, and § 504). Allowing\\nplaintiffs to treat all of this as a use-what-you-wish buffet would make a hash of the underlying\\nenforcement schemes.\\n\\n Despite each of the problems with his interpretation, Doe thinks he has an ace in the hole:\\na helpful agency interpretation. Yes, the Department of Health and Human Services’ Office for\\nCivil Rights supports his view. During the notice-and-comment process for promulgating the\\n§ 1557 regulations, commenters asked the agency to clarify whether the enforcement\\nmechanisms of each statute, including disparate-impact discrimination as a basis for liability, are\\navailable to any plaintiff regardless of the nature of the discrimination at issue. The agency\\nresponded that it “interprets Section 1557 as authorizing a private right of action for claims of\\ndisparate impact discrimination on the basis of any of the criteria enumerated in the legislation.”\\nNondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376, 31,439–40 (May 18,\\n2016).\\n\\n But this interpretive guidance does not do everything Doe thinks it does. While agencies\\nmay have authority to interpret statutes, they do not have authority to rewrite them. “If the intent\\nof Congress is clear, that is the end of the matter.” Chevron U.S.A., Inc. v. Nat. Res. Def.\\nCouncil, Inc., 467 U.S. 837, 842 (1984). In § 1557, as just shown, Congress made plain that it\\nprohibited discrimination in the provision of health care by incorporating and enforcing the\\nsubstantive standards of liability of the four named statutes, not changing them. There is just one\\npermissible interpretation of this language, and the agency failed to respect it. Its contrary\\nagency interpretation counts for naught.\\n\\n One last point deserves mention. It’s not clear that Doe’s interpretation of the statute\\nwould help him anyway. He thinks that some of the antidiscrimination statutes prohibit\\ndisparate-impact discrimination, and that § 1557 leaves him free to pick that standard of liability\\nand apply it to his disability-discrimination claim. But Doe, like the agency, may have a\\nmisunderstanding about how each statute works. Title VI, for example, doesn’t prohibit\\ndisparate-impact discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001). It’s\\nunlikely that Title IX, which was patterned on Title VI, does so either. See Jackson v.\\nBirmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (“Title IX implies a private right of action to\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 7\\n\\n\\nenforce its prohibition on intentional sex discrimination.”); Sandoval, 532 U.S. at 280; Cannon,\\n441 U.S. at 695–96. And contrary to the agency’s understanding, see 81 Fed. Reg. at 31,439,\\nthere is no reason to think the Age Discrimination Act of 1975 picks up this standard of liability,\\nsee Kamps v. Baylor Univ., 592 F. App’x 282, 285–86 (5th Cir. 2014). The Age Discrimination\\nin Employment Act of 1967, it is true, prohibits disparate-impact discrimination. See Smith v.\\nCity of Jackson, 544 U.S. 228, 233–40 (2005). But unlike that statute, the 1975 Age Act does\\nnot bar practices that “otherwise adversely affect” people because of their age, making any\\nanalogy (or conflation) between the two laws dubious. See Kamps, 592 F. App’x at 285–86.\\nThat leaves the legal standard of the Rehabilitation Act as Doe’s best shot, which is exactly what\\nhe gets under our reading of the statute.\\n\\n Application of the Rehabilitation Act. Section 504 of the Rehabilitation Act of 1973\\nprovides that “[n]o otherwise qualified individual with a disability in the United States . . . shall,\\nsolely by reason of her or his disability, be excluded from the participation in, be denied the\\nbenefits of, or be subjected to discrimination under any program or activity receiving Federal\\nfinancial assistance.” 29 U.S.C. § 794(a). To state a claim under the Rehabilitation Act, as\\nincorporated into the Affordable Care Act, Doe thus must allege that (1) he is an individual with\\na disability; (2) he is otherwise qualified for participation in a health program or activity; (3) he\\nis being excluded from participation in, denied the benefits of, or subjected to discrimination\\nunder the program solely by reason of his disability; and (4) the program receives federal\\nassistance. See Maddox v. Univ. of Tenn., 62 F.3d 843, 846 (6th Cir. 1995).\\n\\n We take a few things for granted—that Doe’s HIV-positive status counts as a disability\\nunder the Act, that he is otherwise qualified for his benefits plan, and that the plan receives\\nfederal funds. Even then, has Doe been excluded from participation in, denied the benefits of, or\\nsubjected to discrimination under his plan?\\n\\n No, we must conclude. BlueCross did not exclude Doe from participating in the plan or\\ndeny him benefits covered by it, as he seems to concede. And contrary to his argument, the\\nplan’s specialty medications program did not discriminate against him based on disability.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 8\\n\\n\\n Doe cannot show that BlueCross intentionally discriminated against him. The plan’s\\nspecialty medications list is neutral on its face. Some of the included medicines are apt to be\\nused by those with disabilities. But plenty of others are not, such as medicines used to treat high\\ncholesterol, osteoporosis, or allergic rhinitis, sometimes called a runny nose. See 29 U.S.C.\\n§ 705(20)(B); 42 U.S.C. § 12102(1) (defining a disability as an impairment that substantially\\nlimits one or more major life activities). The common trait linking the listed drugs is cost, not\\nthe disabled status of their users. Because the specialty medications program does not\\ndistinguish based on disability, much less “solely” so, it does not convey any discriminatory\\nintent. See Jones v. City of Monroe, 341 F.3d 474, 478 (6th Cir. 2003).\\n\\n Doe argues that, even if the plan doesn’t intentionally discriminate against the disabled, it\\ncauses a cognizable disparate impact. This raises an open question about the scope of the\\nRehabilitation Act, one we close today. In Alexander v. Choate, the Supreme Court rejected the\\n“boundless notion” that all disparate-impact showings establish a prima facie case under § 504.\\n469 U.S. 287, 299 (1985). But it “assume[d] without deciding that § 504 reaches at least some\\nconduct that has an unjustifiable disparate impact upon the handicapped.” Id.\\n\\n We now resolve what Choate did not and conclude that § 504 does not prohibit\\ndisparate-impact discrimination.\\n\\n Take the text. Disparate-impact discrimination occurs when an entity acts for a\\nnondiscriminatory reason but nevertheless disproportionately harms a protected group. See Ricci\\nv. DeStefano, 557 U.S. 557, 577 (2009). But the Rehabilitation Act bars discrimination “solely\\nby reason of her or his disability.” 29 U.S.C. § 794(a); see Lewis, 681 F.3d at 315–17. That\\nlanguage does not encompass actions taken for nondiscriminatory reasons. The language, as\\nwell, applies only to individuals who are “otherwise qualified” for the program at issue, meaning\\nthat the Act allows the disabled to be “disparately affected by legitimate job criteria.” Crocker v.\\nRunyon, 207 F.3d 314, 321 (6th Cir. 2000). All of this explains why we have remarked that\\n“[t]here is good reason to believe that a disparate impact theory is not available under the\\nRehabilitation Act.” Id. We agree, and so hold.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 9\\n\\n\\n A comparison to other antidiscrimination statutes leads to the same conclusion.\\nSection 504 “was patterned after Title VI.” Cmty. Television of S. Cal. v. Gottfried, 459 U.S.\\n498, 509 (1983). Like § 504, Title VI prohibits a person from “be[ing] excluded from\\nparticipation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination” on the\\nbasis of a protected classification. 42 U.S.C. § 2000d. And Title VI does not reach\\ndisparate-impact discrimination. See Sandoval, 532 U.S. at 280–81. By contrast, when the\\nCourt has found that a statute prohibits disparate-impact discrimination, it has relied on language\\nlike “otherwise adversely affect” or “otherwise make unavailable,” which refers to the\\nconsequences of an action rather than the actor’s intent. See Tex. Dep’t of Hous. & Cmty. Affairs\\nv. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2518–19 (2015) (Fair Housing Act); Smith,\\n544 U.S. at 235–36 (1967 Age Act); Griggs v. Duke Power Co., 401 U.S. 424, 429–31 (1971)\\n(Title VII). That language is missing from § 504, just as it is missing from Title VI.\\n\\n The oddity of applying disparate-impact discrimination in this area points in the same\\ndirection. Because many neutral (and well-intentioned) policies disparately affect the disabled—\\nthe point of such laws most often is to ease the burden of having a disability—the proposed use\\nof the theory under § 504 “could lead to a wholly unwieldy administrative and adjudicative\\nburden.” Choate, 469 U.S. at 298. With thirty years of hindsight, we can go one step further.\\nEven entertaining the idea of disparate-impact liability in this area invites fruitless challenges to\\nlegitimate, and utterly nondiscriminatory, distinctions, as this case aptly shows.\\n\\n Perhaps, one might argue, the Court’s assumption in Choate should count as something\\nmore. After all, at the same time the Court recognized that § 504 “was patterned after and is\\nalmost identical to” Title VI, it also said that “too facile an assimilation of Title VI law to § 504\\nmust be resisted.” Id. at 293 n.7. It then chose to “assume without deciding” that § 504 means\\nsomething different than its twin. See id. at 299. But the Court’s words of caution about the\\nrelationship between the two statutes do not foreclose our own analysis. The key word is\\n“assume.” Because Choate did not decide the issue either way, and in fact expressed\\nreservations about the effects of disparate-impact liability in this area, we remain free to hold that\\n§ 504 does not cover disparate-impact claims.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 10\\n\\n\\n Other courts of appeals, we realize, have made the same assumption that Choate did.\\nSee, e.g., Ruskai v. Pistole, 775 F.3d 61, 78 (1st Cir. 2014); CG v. Pa. Dep’t of Educ., 734 F.3d\\n229, 236 (3d Cir. 2013); Berg v. Fla. Dep’t of Labor & Emp’t Sec., Div. of Vocational Rehab.,\\n163 F.3d 1251, 1254 (11th Cir. 1998). And indeed at least two have acted on it. See McWright\\nv. Alexander, 982 F.2d 222, 228–29 (7th Cir. 1992); Robinson v. Kansas, 295 F.3d 1183, 1187\\n(10th Cir. 2002). But in recognizing disparate-impact claims, the cases overlooked the\\n“essentially identical” text of Title VI and § 504, elevating the purpose of § 504 in light of the\\n“different aim of the Rehabilitation Act as well as the different context in which the Act was\\npassed.” Robinson, 295 F.3d at 1187. Even assuming these cases correctly describe the purpose\\nof the Act, “[n]o legislation pursues its purposes at all costs.” Pension Benefit Guar. Corp. v.\\nLTV Corp., 496 U.S. 633, 646 (1990) (quotation omitted). By any conventional measure, the\\ntext leaves no room for the statute to prohibit disparate-impact discrimination.\\n\\n Doe tries to counter this conclusion on two main grounds. He says that BlueCross’s\\ninclusion of some drugs used by the non-disabled on the specialty medications list was a pretext\\nto cover its intentional discrimination against those with disabilities. But why that is so is never\\nexplained. The reality remains that this lengthy list treats the disabled and non-disabled alike,\\nremoving any possibility that BlueCross targeted individuals with disabilities. Jones, 341 F.3d at\\n478.\\n\\n Doe also argues that BlueCross wrongfully denied his request for an accommodation,\\nnamely letting him buy the medicine at his local pharmacy. A claim based on a denial of a\\nreasonable accommodation differs from a disparate-impact claim. See Ability Ctr. of Greater\\nToledo v. City of Sandusky, 385 F.3d 901, 904 n.4 (6th Cir. 2004); Henrietta D. v. Bloomberg,\\n331 F.3d 261, 276–77 (2d Cir. 2003); see also Lee v. City of Los Angeles, 250 F.3d 668, 690–91\\n(9th Cir. 2001). Under the Rehabilitation Act, a disabled person is “otherwise qualified” for a\\nprogram if he could meet its requirements with a reasonable accommodation. See Kaltenberger\\nv. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also 29 U.S.C. § 794(d);\\n28 C.F.R. § 41.53. And when that holds true, a denial of the requested accommodation may\\namount to unlawful discrimination. See Kaltenberger, 162 F.3d at 435–36. But that distinction\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 11\\n\\n\\ndoes not help Doe. He forfeited his reasonable accommodation argument by failing to articulate\\nit below. See Doe v. Miami Univ., 882 F.3d 579, 594–95 (6th Cir. 2018).\\n\\n The Americans with Disabilities Act claim. Doe separately claims that BlueCross\\ndiscriminated against him in violation of Title III of the Americans with Disabilities Act. The\\nnature of the claim—that BlueCross discriminated against his use of a public accommodation,\\nthe local pharmacy—has a familiar ring to it. And so, regrettably for him, does our conclusion.\\n\\n The Americans with Disabilities Act prohibits disability discrimination in the enjoyment\\nof public accommodations “by any person who owns, leases (or leases to), or operates a place of\\npublic accommodation.” 42 U.S.C. § 12182(a). A pharmacy counts as a public accommodation.\\nId. § 12181(7)(F).\\n\\n Because BlueCross doesn’t own, lease, or operate Doe’s local pharmacy, his claim fails.\\nEveryone agrees that BlueCross doesn’t own or lease the pharmacy. And all dictionaries agree\\nin one way or another that the word “operate” means “[t]o direct the working of; to manage,\\nconduct, work (a railway, business, etc.).” 10 Oxford English Dictionary, supra, at 848; see Neff\\nv. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995).\\n\\n BlueCross doesn’t operate Doe’s local pharmacy in any meaningful sense of the word.\\nBlueCross does not control the pharmacy’s hours, accessibility policies, or customer service\\nprotocols. It controls just one thing related to the pharmacy: how much Doe pays out-of-pocket\\nfor a product he would like to purchase there. That type of arrangement doesn’t make BlueCross\\nthe pharmacy’s manager.\\n\\n Doe insists otherwise, noting the connection between the specialty medications program\\nand his diminished access to medicine. Yes, BlueCross may in one sense be responsible for\\ndenying him in-network benefits at the pharmacy. The same, however, could be said of\\nCongress, which wrote the Americans with Disabilities Act and which in another sense is\\nresponsible for BlueCross not having to make this accommodation. But neither of these things\\nmakes them managers of the pharmacy. The truth of the matter is that Doe targets BlueCross’s\\noperation of his health care plan, not its control over his pharmacy. And Doe’s health plan\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 12\\n\\n\\nsimply does not qualify as a public accommodation. See Parker v. Metro. Life Ins. Co., 121 F.3d\\n1006, 1014 (6th Cir. 1997) (en banc).\\n\\n The breach of contract claim. Doe alleges that BlueCross breached its contract with him\\nby violating its implied duty of good faith and fair dealing. Tennessee law, it is true, imposes a\\nduty of good faith in the performance of contracts. Dick Broad. Co. of Tenn. v. Oak Ridge FM,\\nInc., 395 S.W.3d 653, 660 (Tenn. 2013). But as Doe seems to concede, the failure of his\\nAffordable Care Act and Americans with Disabilities Act claims dooms his argument that\\nBlueCross violated its duty of good faith by inadequately covering his Genvoya. Doe’s contract\\nclaim does not get off the ground.\\n\\n The motion for leave to amend. Doe ends by arguing that the district court should have\\nlet him amend his complaint a second time. But in his request for leave to amend, Doe did not\\nexplain to the district court how he intended to patch up his complaint. On appeal, he has\\nprovided a few hints about amendments he would like to make, but they would still leave his\\ncomplaint inadequate. A court need not grant leave to amend when doing so would be futile.\\nSee Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017).\\n\\n We affirm.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4403274/\", \"author_raw\": \"SUTTON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"GUY"},"judge2":{"kind":"string","value":"SUTTON"},"judge3":{"kind":"string","value":"NALBANDIAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4626021/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: John DOE, Plaintiff-Appellant, v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0115p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n JOHN DOE, ┐\n Plaintiff-Appellant, │\n │\n > No. 18-5897\n v. │\n │\n │\n BLUECROSS BLUESHIELD OF TENNESSEE, INC., │\n Defendant-Appellee. │\n ┘\n\n Appeal from the United States District Court\n for the Western District of Tennessee at Memphis.\n No. 2:17-cv-02793—Thomas L. Parker, District Judge.\n\n Argued: May 1, 2019\n\n Decided and Filed: June 4, 2019\n\n Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Jerry Flanagan, CONSUMER WATCHDOG, Los Angeles, California, for\nAppellant. Todd Kim, REED SMITH LLP, Washington, D.C., for Appellee. ON BRIEF: Jerry\nFlanagan, CONSUMER WATCHDOG, Los Angeles, California, Edith M. Kallas, WHATLEY\nKALLAS, LLP, New York, New York, Alan M. Mansfield, WHATLEY KALLAS, LLP, San\nDiego, California, Jerry Martin, Seth M. Hyatt, BARRETT JOHNSTON MARTIN &\nGARRISON, LLC, Nashville, Tennessee, for Appellant. Todd Kim, REED SMITH LLP,\nWashington, D.C., Bryan M. Webster, Abraham Judson Souza, REED SMITH LLP, Chicago,\nIllinois, for Appellee.\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n SUTTON, Circuit Judge. Treating similarly situated people differently goes to the heart\nof invidious discrimination. But treating differently situated people differently usually counts as\nequal justice under law. Today’s case involves the second scenario in the context of an\napplication of the antidiscrimination provisions of the Affordable Care Act.\n\n John Doe receives HIV medicine through a health care plan administered by BlueCross\nBlueShield of Tennessee. Although Doe would like to pick up his medicine at his local\npharmacy, his plan requires him, and anyone else who uses certain high-cost drugs, to get his\nmedicine by mail or at a specialty pharmacy. Frustrated by that requirement, Doe sued\nBlueCross for discriminating against him on the basis of disability and for breaching their\ncontract. The district court rejected the claims as a matter of law. We affirm.\n\n I.\n\n John Doe is HIV-positive and takes Genvoya to keep his condition under control. While\nadvances in HIV/AIDS research continue to improve treatment for the disease, the most effective\nmedicines can be expensive. Doe receives health insurance from BlueCross. Happily for him,\nthe plan covers Genvoya.\n\n Unhappily for him, BlueCross imposes requirements on where individuals obtain the\nmedication. Doe originally bought Genvoya from his local pharmacy. But after February 2017,\nthe pharmacy told him that BlueCross wouldn’t pay for the medication there any longer.\nBlueCross requires beneficiaries to obtain specialty medicines—usually high-cost medicines for\nchronic and serious diseases—from a specialty pharmacy network if they want to pay in-network\n(read lower) prices. That meant Doe could fill the HIV prescription only through mail order or\nby picking it up at certain brick-and-mortar pharmacies. So long as Doe used the specialty\npharmacy network, his co-pay for each monthly batch of Genvoya would be $120. But if Doe\ncontinued to get the medicine at his local pharmacy, BlueCross wouldn’t cover it at all, leaving\nhim to pay full freight at thousands of dollars per batch.\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 3\n\n\n This development bothered Doe. He liked interacting with his regular pharmacists, who\nknew his medical history and who could spot the effects of harmful drug interactions. He also\nworried that medicine deliveries to his house might compromise his privacy or risk heat damage\nto the medicine. Doe asked BlueCross for permission to opt out of the specialty medications\nprogram. BlueCross declined.\n\n Doe filed this putative class action against BlueCross, alleging that it discriminated\nagainst him and other HIV-positive beneficiaries in violation of the Affordable Care Act as well\nas the Americans with Disabilities Act and that it breached their insurance contract. The district\ncourt granted BlueCross’s motion to dismiss the complaint and denied Doe leave to amend.\n\n II.\n\n The Affordable Care Act claim. Doe contends that BlueCross discriminated against him\non the basis of disability in violation of § 1557 of the Patient Protection and Affordable Care\nAct. The argument implicates two questions. Does the standard of liability include a relaxed\nform of disparate-impact discrimination? May Doe bring a private lawsuit to enforce the claim?\n\n As for the standard of liability, the language of the statute is a good place to start. The\nfirst sentence of § 1557 provides that “an individual shall not, on the ground prohibited under\ntitle VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age\nDiscrimination Act of 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from\nparticipation in, be denied the benefits of, or be subjected to discrimination under, any health\nprogram or activity, any part of which is receiving Federal financial assistance.” 42 U.S.C.\n§ 18116(a). This language brings the problem into view. Doe thinks that some of the\nincorporated statutes permit discrimination claims based on a relaxed disparate-impact theory of\nliability and that some of them do not. As he sees it, he may pick the statute with the lightest\nstandard from this menu of four options and use that standard of liability in prosecuting his claim\nfor disability discrimination.\n\n The statute does not permit this reading. In the abstract, the word “ground” picks up the\nbasis on which the insurer takes an action. See 6 Oxford English Dictionary 876 (2d ed. 1989).\nIn the concrete context of this law, the word “ground” refers to the forbidden source of\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 4\n\n\ndiscrimination: race, color, and national origin (Title VI); sex (Title IX); age (Age\nDiscrimination Act); and disability (Rehabilitation Act). When “ground” is paired with\n“prohibited,” as in “on the ground prohibited,” the statute picks up the type of discrimination—\nthe standard for determining discrimination—prohibited under each of the four incorporated\nstatutes. If the claimant seeks relief for discrimination “on the ground prohibited” by § 504 of\nthe Rehabilitation Act, for example, he must show differential treatment “solely by reason of”\ndisability, 29 U.S.C. § 794(a), not some other standard of care. See Lewis v. Humboldt\nAcquisition Corp., 681 F.3d 312, 315–16 (6th Cir. 2012) (en banc). Otherwise, the health\ninsurer’s actions do not amount to the kind of “discrimination” barred by the law.\n\n Think of it this way. The Affordable Care Act prohibits discrimination based on several\ngrounds. But it does not change the nature of those grounds any more than it adds a new form of\ndiscrimination, say discrimination based on political perspective, to the law. By referring to four\nstatutes, Congress incorporated the legal standards that define discrimination under each one.\nSee Panama R. Co. v. Johnson, 264 U.S. 375, 392 (1924).\n\n The second sentence of the section reinforces this conclusion. It says that “[t]he\nenforcement mechanisms provided for and available under such title VI, title IX, section 504, or\nsuch Age Discrimination Act shall apply for purposes of violations of this subsection.”\n42 U.S.C. § 18116(a). “Enforcement” refers to compelling adherence to the duty in each law.\n5 Oxford English Dictionary, supra, at 245. And a “mechanism” is the means of producing each\nend. 9 id. at 536. The phrase “enforcement mechanism” thus covers the distinct methods\navailable under the four listed statutes for compelling compliance with the substantive\nrequirements of each statute. If the first sentence created a brand-new single standard for what\nqualifies as discrimination, why would Congress use four distinct families of enforcement\nmechanisms to compel compliance with that standard rather than creating a matching single\nmechanism? We can think of no answer. Here, as is so often the case, Occam’s Razor provides\na handy guide.\n\n Pulling all of this together, the statute prohibits discrimination against the disabled in the\nprovision of federally supported health programs under § 504 of the Rehabilitation Act. In doing\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 5\n\n\nso, the Affordable Care Act picks up the standard of care for showing a violation of § 504, not\nthe other laws incorporated by the statute or for that matter any other statute.\n\n This approach also makes short work of the second statutory question: May Doe enforce\nthe law through a private right of action? Yes. Because the Rehabilitation Act contains a private\nright of action, see Barnes v. Gorman, 536 U.S. 181, 185 (2002), the enforcement mechanism\nsentence permits Doe to bring this lawsuit to enforce that prohibition under the Affordable Care\nAct as well.\n\n Doe accepts some of this analysis. He agrees that the Act gives him a private cause of\naction to sue for disability discrimination for the reasons just given. But he thinks the\nenforcement mechanism sentence allows him to use any of the four substantive legal standards\nfor proving discrimination and apply it to any of the four classifications.\n\n Picking your own adventure, however, is not what that sentence says. The phrase\n“enforcement mechanism” refers to the process for compelling compliance with a substantive\nright, not the substantive right itself. As we have said before, in interpreting § 504 of the\nRehabilitation Act no less, “[e]nforcement provisions generally do not alter substantive standards\nof care.” Lewis, 681 F.3d at 316. Had Congress wished to make all of the enforcement\nmechanisms available for any classification, it would have said “[t]he enforcement mechanisms\nprovided for and available under title VI, title IX, section 504, and such Age Discrimination Act\nshall apply”—instead of the or it opted to use.\n\n Context does Doe’s argument no favors either. Each antidiscrimination statute has its\nown highly reticulated set of enforcement rules adapted for the type of discrimination that each\nlaw targets. For example, Title VI, Title IX, and § 504 do not require the exhaustion of\nadministrative remedies before bringing a private cause of action, while the Age Discrimination\nAct does. See 42 U.S.C. § 6104(e)(2), (f) (Age Discrimination Act); Cannon v. Univ. of Chi.,\n441 U.S. 677, 706 n.41 (1979) (Title IX); Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465,\n470–71 (6th Cir. 1993) (§ 504); Neighborhood Action Coal. v. City of Canton, 882 F.2d 1012,\n1015 (6th Cir. 1989) (Title VI). And while Title VI, Title IX, and § 504 allow the recovery of\ncompensatory damages, the Age Discrimination Act does not. See 42 U.S.C. § 6104(e)\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 6\n\n\n(Age Discrimination Act); Barnes, 536 U.S. at 185–89 (Title VI, Title IX, and § 504). Allowing\nplaintiffs to treat all of this as a use-what-you-wish buffet would make a hash of the underlying\nenforcement schemes.\n\n Despite each of the problems with his interpretation, Doe thinks he has an ace in the hole:\na helpful agency interpretation. Yes, the Department of Health and Human Services’ Office for\nCivil Rights supports his view. During the notice-and-comment process for promulgating the\n§ 1557 regulations, commenters asked the agency to clarify whether the enforcement\nmechanisms of each statute, including disparate-impact discrimination as a basis for liability, are\navailable to any plaintiff regardless of the nature of the discrimination at issue. The agency\nresponded that it “interprets Section 1557 as authorizing a private right of action for claims of\ndisparate impact discrimination on the basis of any of the criteria enumerated in the legislation.”\nNondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376, 31,439–40 (May 18,\n2016).\n\n But this interpretive guidance does not do everything Doe thinks it does. While agencies\nmay have authority to interpret statutes, they do not have authority to rewrite them. “If the intent\nof Congress is clear, that is the end of the matter.” Chevron U.S.A., Inc. v. Nat. Res. Def.\nCouncil, Inc., 467 U.S. 837, 842 (1984). In § 1557, as just shown, Congress made plain that it\nprohibited discrimination in the provision of health care by incorporating and enforcing the\nsubstantive standards of liability of the four named statutes, not changing them. There is just one\npermissible interpretation of this language, and the agency failed to respect it. Its contrary\nagency interpretation counts for naught.\n\n One last point deserves mention. It’s not clear that Doe’s interpretation of the statute\nwould help him anyway. He thinks that some of the antidiscrimination statutes prohibit\ndisparate-impact discrimination, and that § 1557 leaves him free to pick that standard of liability\nand apply it to his disability-discrimination claim. But Doe, like the agency, may have a\nmisunderstanding about how each statute works. Title VI, for example, doesn’t prohibit\ndisparate-impact discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001). It’s\nunlikely that Title IX, which was patterned on Title VI, does so either. See Jackson v.\nBirmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (“Title IX implies a private right of action to\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 7\n\n\nenforce its prohibition on intentional sex discrimination.”); Sandoval, 532 U.S. at 280; Cannon,\n441 U.S. at 695–96. And contrary to the agency’s understanding, see 81 Fed. Reg. at 31,439,\nthere is no reason to think the Age Discrimination Act of 1975 picks up this standard of liability,\nsee Kamps v. Baylor Univ., 592 F. App’x 282, 285–86 (5th Cir. 2014). The Age Discrimination\nin Employment Act of 1967, it is true, prohibits disparate-impact discrimination. See Smith v.\nCity of Jackson, 544 U.S. 228, 233–40 (2005). But unlike that statute, the 1975 Age Act does\nnot bar practices that “otherwise adversely affect” people because of their age, making any\nanalogy (or conflation) between the two laws dubious. See Kamps, 592 F. App’x at 285–86.\nThat leaves the legal standard of the Rehabilitation Act as Doe’s best shot, which is exactly what\nhe gets under our reading of the statute.\n\n Application of the Rehabilitation Act. Section 504 of the Rehabilitation Act of 1973\nprovides that “[n]o otherwise qualified individual with a disability in the United States . . . shall,\nsolely by reason of her or his disability, be excluded from the participation in, be denied the\nbenefits of, or be subjected to discrimination under any program or activity receiving Federal\nfinancial assistance.” 29 U.S.C. § 794(a). To state a claim under the Rehabilitation Act, as\nincorporated into the Affordable Care Act, Doe thus must allege that (1) he is an individual with\na disability; (2) he is otherwise qualified for participation in a health program or activity; (3) he\nis being excluded from participation in, denied the benefits of, or subjected to discrimination\nunder the program solely by reason of his disability; and (4) the program receives federal\nassistance. See Maddox v. Univ. of Tenn., 62 F.3d 843, 846 (6th Cir. 1995).\n\n We take a few things for granted—that Doe’s HIV-positive status counts as a disability\nunder the Act, that he is otherwise qualified for his benefits plan, and that the plan receives\nfederal funds. Even then, has Doe been excluded from participation in, denied the benefits of, or\nsubjected to discrimination under his plan?\n\n No, we must conclude. BlueCross did not exclude Doe from participating in the plan or\ndeny him benefits covered by it, as he seems to concede. And contrary to his argument, the\nplan’s specialty medications program did not discriminate against him based on disability.\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 8\n\n\n Doe cannot show that BlueCross intentionally discriminated against him. The plan’s\nspecialty medications list is neutral on its face. Some of the included medicines are apt to be\nused by those with disabilities. But plenty of others are not, such as medicines used to treat high\ncholesterol, osteoporosis, or allergic rhinitis, sometimes called a runny nose. See 29 U.S.C.\n§ 705(20)(B); 42 U.S.C. § 12102(1) (defining a disability as an impairment that substantially\nlimits one or more major life activities). The common trait linking the listed drugs is cost, not\nthe disabled status of their users. Because the specialty medications program does not\ndistinguish based on disability, much less “solely” so, it does not convey any discriminatory\nintent. See Jones v. City of Monroe, 341 F.3d 474, 478 (6th Cir. 2003).\n\n Doe argues that, even if the plan doesn’t intentionally discriminate against the disabled, it\ncauses a cognizable disparate impact. This raises an open question about the scope of the\nRehabilitation Act, one we close today. In Alexander v. Choate, the Supreme Court rejected the\n“boundless notion” that all disparate-impact showings establish a prima facie case under § 504.\n469 U.S. 287, 299 (1985). But it “assume[d] without deciding that § 504 reaches at least some\nconduct that has an unjustifiable disparate impact upon the handicapped.” Id.\n\n We now resolve what Choate did not and conclude that § 504 does not prohibit\ndisparate-impact discrimination.\n\n Take the text. Disparate-impact discrimination occurs when an entity acts for a\nnondiscriminatory reason but nevertheless disproportionately harms a protected group. See Ricci\nv. DeStefano, 557 U.S. 557, 577 (2009). But the Rehabilitation Act bars discrimination “solely\nby reason of her or his disability.” 29 U.S.C. § 794(a); see Lewis, 681 F.3d at 315–17. That\nlanguage does not encompass actions taken for nondiscriminatory reasons. The language, as\nwell, applies only to individuals who are “otherwise qualified” for the program at issue, meaning\nthat the Act allows the disabled to be “disparately affected by legitimate job criteria.” Crocker v.\nRunyon, 207 F.3d 314, 321 (6th Cir. 2000). All of this explains why we have remarked that\n“[t]here is good reason to believe that a disparate impact theory is not available under the\nRehabilitation Act.” Id. We agree, and so hold.\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 9\n\n\n A comparison to other antidiscrimination statutes leads to the same conclusion.\nSection 504 “was patterned after Title VI.” Cmty. Television of S. Cal. v. Gottfried, 459 U.S.\n498, 509 (1983). Like § 504, Title VI prohibits a person from “be[ing] excluded from\nparticipation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination” on the\nbasis of a protected classification. 42 U.S.C. § 2000d. And Title VI does not reach\ndisparate-impact discrimination. See Sandoval, 532 U.S. at 280–81. By contrast, when the\nCourt has found that a statute prohibits disparate-impact discrimination, it has relied on language\nlike “otherwise adversely affect” or “otherwise make unavailable,” which refers to the\nconsequences of an action rather than the actor’s intent. See Tex. Dep’t of Hous. & Cmty. Affairs\nv. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2518–19 (2015) (Fair Housing Act); Smith,\n544 U.S. at 235–36 (1967 Age Act); Griggs v. Duke Power Co., 401 U.S. 424, 429–31 (1971)\n(Title VII). That language is missing from § 504, just as it is missing from Title VI.\n\n The oddity of applying disparate-impact discrimination in this area points in the same\ndirection. Because many neutral (and well-intentioned) policies disparately affect the disabled—\nthe point of such laws most often is to ease the burden of having a disability—the proposed use\nof the theory under § 504 “could lead to a wholly unwieldy administrative and adjudicative\nburden.” Choate, 469 U.S. at 298. With thirty years of hindsight, we can go one step further.\nEven entertaining the idea of disparate-impact liability in this area invites fruitless challenges to\nlegitimate, and utterly nondiscriminatory, distinctions, as this case aptly shows.\n\n Perhaps, one might argue, the Court’s assumption in Choate should count as something\nmore. After all, at the same time the Court recognized that § 504 “was patterned after and is\nalmost identical to” Title VI, it also said that “too facile an assimilation of Title VI law to § 504\nmust be resisted.” Id. at 293 n.7. It then chose to “assume without deciding” that § 504 means\nsomething different than its twin. See id. at 299. But the Court’s words of caution about the\nrelationship between the two statutes do not foreclose our own analysis. The key word is\n“assume.” Because Choate did not decide the issue either way, and in fact expressed\nreservations about the effects of disparate-impact liability in this area, we remain free to hold that\n§ 504 does not cover disparate-impact claims.\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 10\n\n\n Other courts of appeals, we realize, have made the same assumption that Choate did.\nSee, e.g., Ruskai v. Pistole, 775 F.3d 61, 78 (1st Cir. 2014); CG v. Pa. Dep’t of Educ., 734 F.3d\n229, 236 (3d Cir. 2013); Berg v. Fla. Dep’t of Labor & Emp’t Sec., Div. of Vocational Rehab.,\n163 F.3d 1251, 1254 (11th Cir. 1998). And indeed at least two have acted on it. See McWright\nv. Alexander, 982 F.2d 222, 228–29 (7th Cir. 1992); Robinson v. Kansas, 295 F.3d 1183, 1187\n(10th Cir. 2002). But in recognizing disparate-impact claims, the cases overlooked the\n“essentially identical” text of Title VI and § 504, elevating the purpose of § 504 in light of the\n“different aim of the Rehabilitation Act as well as the different context in which the Act was\npassed.” Robinson, 295 F.3d at 1187. Even assuming these cases correctly describe the purpose\nof the Act, “[n]o legislation pursues its purposes at all costs.” Pension Benefit Guar. Corp. v.\nLTV Corp., 496 U.S. 633, 646 (1990) (quotation omitted). By any conventional measure, the\ntext leaves no room for the statute to prohibit disparate-impact discrimination.\n\n Doe tries to counter this conclusion on two main grounds. He says that BlueCross’s\ninclusion of some drugs used by the non-disabled on the specialty medications list was a pretext\nto cover its intentional discrimination against those with disabilities. But why that is so is never\nexplained. The reality remains that this lengthy list treats the disabled and non-disabled alike,\nremoving any possibility that BlueCross targeted individuals with disabilities. Jones, 341 F.3d at\n478.\n\n Doe also argues that BlueCross wrongfully denied his request for an accommodation,\nnamely letting him buy the medicine at his local pharmacy. A claim based on a denial of a\nreasonable accommodation differs from a disparate-impact claim. See Ability Ctr. of Greater\nToledo v. City of Sandusky, 385 F.3d 901, 904 n.4 (6th Cir. 2004); Henrietta D. v. Bloomberg,\n331 F.3d 261, 276–77 (2d Cir. 2003); see also Lee v. City of Los Angeles, 250 F.3d 668, 690–91\n(9th Cir. 2001). Under the Rehabilitation Act, a disabled person is “otherwise qualified” for a\nprogram if he could meet its requirements with a reasonable accommodation. See Kaltenberger\nv. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also 29 U.S.C. § 794(d);\n28 C.F.R. § 41.53. And when that holds true, a denial of the requested accommodation may\namount to unlawful discrimination. See Kaltenberger, 162 F.3d at 435–36. But that distinction\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 11\n\n\ndoes not help Doe. He forfeited his reasonable accommodation argument by failing to articulate\nit below. See Doe v. Miami Univ., 882 F.3d 579, 594–95 (6th Cir. 2018).\n\n The Americans with Disabilities Act claim. Doe separately claims that BlueCross\ndiscriminated against him in violation of Title III of the Americans with Disabilities Act. The\nnature of the claim—that BlueCross discriminated against his use of a public accommodation,\nthe local pharmacy—has a familiar ring to it. And so, regrettably for him, does our conclusion.\n\n The Americans with Disabilities Act prohibits disability discrimination in the enjoyment\nof public accommodations “by any person who owns, leases (or leases to), or operates a place of\npublic accommodation.” 42 U.S.C. § 12182(a). A pharmacy counts as a public accommodation.\nId. § 12181(7)(F).\n\n Because BlueCross doesn’t own, lease, or operate Doe’s local pharmacy, his claim fails.\nEveryone agrees that BlueCross doesn’t own or lease the pharmacy. And all dictionaries agree\nin one way or another that the word “operate” means “[t]o direct the working of; to manage,\nconduct, work (a railway, business, etc.).” 10 Oxford English Dictionary, supra, at 848; see Neff\nv. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995).\n\n BlueCross doesn’t operate Doe’s local pharmacy in any meaningful sense of the word.\nBlueCross does not control the pharmacy’s hours, accessibility policies, or customer service\nprotocols. It controls just one thing related to the pharmacy: how much Doe pays out-of-pocket\nfor a product he would like to purchase there. That type of arrangement doesn’t make BlueCross\nthe pharmacy’s manager.\n\n Doe insists otherwise, noting the connection between the specialty medications program\nand his diminished access to medicine. Yes, BlueCross may in one sense be responsible for\ndenying him in-network benefits at the pharmacy. The same, however, could be said of\nCongress, which wrote the Americans with Disabilities Act and which in another sense is\nresponsible for BlueCross not having to make this accommodation. But neither of these things\nmakes them managers of the pharmacy. The truth of the matter is that Doe targets BlueCross’s\noperation of his health care plan, not its control over his pharmacy. And Doe’s health plan\n\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 12\n\n\nsimply does not qualify as a public accommodation. See Parker v. Metro. Life Ins. Co., 121 F.3d\n1006, 1014 (6th Cir. 1997) (en banc).\n\n The breach of contract claim. Doe alleges that BlueCross breached its contract with him\nby violating its implied duty of good faith and fair dealing. Tennessee law, it is true, imposes a\nduty of good faith in the performance of contracts. Dick Broad. Co. of Tenn. v. Oak Ridge FM,\nInc., 395 S.W.3d 653, 660 (Tenn. 2013). But as Doe seems to concede, the failure of his\nAffordable Care Act and Americans with Disabilities Act claims dooms his argument that\nBlueCross violated its duty of good faith by inadequately covering his Genvoya. Doe’s contract\nclaim does not get off the ground.\n\n The motion for leave to amend. Doe ends by arguing that the district court should have\nlet him amend his complaint a second time. But in his request for leave to amend, Doe did not\nexplain to the district court how he intended to patch up his complaint. On appeal, he has\nprovided a few hints about amendments he would like to make, but they would still leave his\ncomplaint inadequate. A court need not grant leave to amend when doing so would be futile.\nSee Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017).\n\n We affirm.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: John DOE, Plaintiff-Appellant, v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0115p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n JOHN DOE, ┐\\n Plaintiff-Appellant, │\\n │\\n > No. 18-5897\\n v. │\\n │\\n │\\n BLUECROSS BLUESHIELD OF TENNESSEE, INC., │\\n Defendant-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Western District of Tennessee at Memphis.\\n No. 2:17-cv-02793—Thomas L. Parker, District Judge.\\n\\n Argued: May 1, 2019\\n\\n Decided and Filed: June 4, 2019\\n\\n Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Jerry Flanagan, CONSUMER WATCHDOG, Los Angeles, California, for\\nAppellant. Todd Kim, REED SMITH LLP, Washington, D.C., for Appellee. ON BRIEF: Jerry\\nFlanagan, CONSUMER WATCHDOG, Los Angeles, California, Edith M. Kallas, WHATLEY\\nKALLAS, LLP, New York, New York, Alan M. Mansfield, WHATLEY KALLAS, LLP, San\\nDiego, California, Jerry Martin, Seth M. Hyatt, BARRETT JOHNSTON MARTIN &\\nGARRISON, LLC, Nashville, Tennessee, for Appellant. Todd Kim, REED SMITH LLP,\\nWashington, D.C., Bryan M. Webster, Abraham Judson Souza, REED SMITH LLP, Chicago,\\nIllinois, for Appellee.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n SUTTON, Circuit Judge. Treating similarly situated people differently goes to the heart\\nof invidious discrimination. But treating differently situated people differently usually counts as\\nequal justice under law. Today’s case involves the second scenario in the context of an\\napplication of the antidiscrimination provisions of the Affordable Care Act.\\n\\n John Doe receives HIV medicine through a health care plan administered by BlueCross\\nBlueShield of Tennessee. Although Doe would like to pick up his medicine at his local\\npharmacy, his plan requires him, and anyone else who uses certain high-cost drugs, to get his\\nmedicine by mail or at a specialty pharmacy. Frustrated by that requirement, Doe sued\\nBlueCross for discriminating against him on the basis of disability and for breaching their\\ncontract. The district court rejected the claims as a matter of law. We affirm.\\n\\n I.\\n\\n John Doe is HIV-positive and takes Genvoya to keep his condition under control. While\\nadvances in HIV/AIDS research continue to improve treatment for the disease, the most effective\\nmedicines can be expensive. Doe receives health insurance from BlueCross. Happily for him,\\nthe plan covers Genvoya.\\n\\n Unhappily for him, BlueCross imposes requirements on where individuals obtain the\\nmedication. Doe originally bought Genvoya from his local pharmacy. But after February 2017,\\nthe pharmacy told him that BlueCross wouldn’t pay for the medication there any longer.\\nBlueCross requires beneficiaries to obtain specialty medicines—usually high-cost medicines for\\nchronic and serious diseases—from a specialty pharmacy network if they want to pay in-network\\n(read lower) prices. That meant Doe could fill the HIV prescription only through mail order or\\nby picking it up at certain brick-and-mortar pharmacies. So long as Doe used the specialty\\npharmacy network, his co-pay for each monthly batch of Genvoya would be $120. But if Doe\\ncontinued to get the medicine at his local pharmacy, BlueCross wouldn’t cover it at all, leaving\\nhim to pay full freight at thousands of dollars per batch.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 3\\n\\n\\n This development bothered Doe. He liked interacting with his regular pharmacists, who\\nknew his medical history and who could spot the effects of harmful drug interactions. He also\\nworried that medicine deliveries to his house might compromise his privacy or risk heat damage\\nto the medicine. Doe asked BlueCross for permission to opt out of the specialty medications\\nprogram. BlueCross declined.\\n\\n Doe filed this putative class action against BlueCross, alleging that it discriminated\\nagainst him and other HIV-positive beneficiaries in violation of the Affordable Care Act as well\\nas the Americans with Disabilities Act and that it breached their insurance contract. The district\\ncourt granted BlueCross’s motion to dismiss the complaint and denied Doe leave to amend.\\n\\n II.\\n\\n The Affordable Care Act claim. Doe contends that BlueCross discriminated against him\\non the basis of disability in violation of § 1557 of the Patient Protection and Affordable Care\\nAct. The argument implicates two questions. Does the standard of liability include a relaxed\\nform of disparate-impact discrimination? May Doe bring a private lawsuit to enforce the claim?\\n\\n As for the standard of liability, the language of the statute is a good place to start. The\\nfirst sentence of § 1557 provides that “an individual shall not, on the ground prohibited under\\ntitle VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age\\nDiscrimination Act of 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from\\nparticipation in, be denied the benefits of, or be subjected to discrimination under, any health\\nprogram or activity, any part of which is receiving Federal financial assistance.” 42 U.S.C.\\n§ 18116(a). This language brings the problem into view. Doe thinks that some of the\\nincorporated statutes permit discrimination claims based on a relaxed disparate-impact theory of\\nliability and that some of them do not. As he sees it, he may pick the statute with the lightest\\nstandard from this menu of four options and use that standard of liability in prosecuting his claim\\nfor disability discrimination.\\n\\n The statute does not permit this reading. In the abstract, the word “ground” picks up the\\nbasis on which the insurer takes an action. See 6 Oxford English Dictionary 876 (2d ed. 1989).\\nIn the concrete context of this law, the word “ground” refers to the forbidden source of\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 4\\n\\n\\ndiscrimination: race, color, and national origin (Title VI); sex (Title IX); age (Age\\nDiscrimination Act); and disability (Rehabilitation Act). When “ground” is paired with\\n“prohibited,” as in “on the ground prohibited,” the statute picks up the type of discrimination—\\nthe standard for determining discrimination—prohibited under each of the four incorporated\\nstatutes. If the claimant seeks relief for discrimination “on the ground prohibited” by § 504 of\\nthe Rehabilitation Act, for example, he must show differential treatment “solely by reason of”\\ndisability, 29 U.S.C. § 794(a), not some other standard of care. See Lewis v. Humboldt\\nAcquisition Corp., 681 F.3d 312, 315–16 (6th Cir. 2012) (en banc). Otherwise, the health\\ninsurer’s actions do not amount to the kind of “discrimination” barred by the law.\\n\\n Think of it this way. The Affordable Care Act prohibits discrimination based on several\\ngrounds. But it does not change the nature of those grounds any more than it adds a new form of\\ndiscrimination, say discrimination based on political perspective, to the law. By referring to four\\nstatutes, Congress incorporated the legal standards that define discrimination under each one.\\nSee Panama R. Co. v. Johnson, 264 U.S. 375, 392 (1924).\\n\\n The second sentence of the section reinforces this conclusion. It says that “[t]he\\nenforcement mechanisms provided for and available under such title VI, title IX, section 504, or\\nsuch Age Discrimination Act shall apply for purposes of violations of this subsection.”\\n42 U.S.C. § 18116(a). “Enforcement” refers to compelling adherence to the duty in each law.\\n5 Oxford English Dictionary, supra, at 245. And a “mechanism” is the means of producing each\\nend. 9 id. at 536. The phrase “enforcement mechanism” thus covers the distinct methods\\navailable under the four listed statutes for compelling compliance with the substantive\\nrequirements of each statute. If the first sentence created a brand-new single standard for what\\nqualifies as discrimination, why would Congress use four distinct families of enforcement\\nmechanisms to compel compliance with that standard rather than creating a matching single\\nmechanism? We can think of no answer. Here, as is so often the case, Occam’s Razor provides\\na handy guide.\\n\\n Pulling all of this together, the statute prohibits discrimination against the disabled in the\\nprovision of federally supported health programs under § 504 of the Rehabilitation Act. In doing\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 5\\n\\n\\nso, the Affordable Care Act picks up the standard of care for showing a violation of § 504, not\\nthe other laws incorporated by the statute or for that matter any other statute.\\n\\n This approach also makes short work of the second statutory question: May Doe enforce\\nthe law through a private right of action? Yes. Because the Rehabilitation Act contains a private\\nright of action, see Barnes v. Gorman, 536 U.S. 181, 185 (2002), the enforcement mechanism\\nsentence permits Doe to bring this lawsuit to enforce that prohibition under the Affordable Care\\nAct as well.\\n\\n Doe accepts some of this analysis. He agrees that the Act gives him a private cause of\\naction to sue for disability discrimination for the reasons just given. But he thinks the\\nenforcement mechanism sentence allows him to use any of the four substantive legal standards\\nfor proving discrimination and apply it to any of the four classifications.\\n\\n Picking your own adventure, however, is not what that sentence says. The phrase\\n“enforcement mechanism” refers to the process for compelling compliance with a substantive\\nright, not the substantive right itself. As we have said before, in interpreting § 504 of the\\nRehabilitation Act no less, “[e]nforcement provisions generally do not alter substantive standards\\nof care.” Lewis, 681 F.3d at 316. Had Congress wished to make all of the enforcement\\nmechanisms available for any classification, it would have said “[t]he enforcement mechanisms\\nprovided for and available under title VI, title IX, section 504, and such Age Discrimination Act\\nshall apply”—instead of the or it opted to use.\\n\\n Context does Doe’s argument no favors either. Each antidiscrimination statute has its\\nown highly reticulated set of enforcement rules adapted for the type of discrimination that each\\nlaw targets. For example, Title VI, Title IX, and § 504 do not require the exhaustion of\\nadministrative remedies before bringing a private cause of action, while the Age Discrimination\\nAct does. See 42 U.S.C. § 6104(e)(2), (f) (Age Discrimination Act); Cannon v. Univ. of Chi.,\\n441 U.S. 677, 706 n.41 (1979) (Title IX); Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465,\\n470–71 (6th Cir. 1993) (§ 504); Neighborhood Action Coal. v. City of Canton, 882 F.2d 1012,\\n1015 (6th Cir. 1989) (Title VI). And while Title VI, Title IX, and § 504 allow the recovery of\\ncompensatory damages, the Age Discrimination Act does not. See 42 U.S.C. § 6104(e)\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 6\\n\\n\\n(Age Discrimination Act); Barnes, 536 U.S. at 185–89 (Title VI, Title IX, and § 504). Allowing\\nplaintiffs to treat all of this as a use-what-you-wish buffet would make a hash of the underlying\\nenforcement schemes.\\n\\n Despite each of the problems with his interpretation, Doe thinks he has an ace in the hole:\\na helpful agency interpretation. Yes, the Department of Health and Human Services’ Office for\\nCivil Rights supports his view. During the notice-and-comment process for promulgating the\\n§ 1557 regulations, commenters asked the agency to clarify whether the enforcement\\nmechanisms of each statute, including disparate-impact discrimination as a basis for liability, are\\navailable to any plaintiff regardless of the nature of the discrimination at issue. The agency\\nresponded that it “interprets Section 1557 as authorizing a private right of action for claims of\\ndisparate impact discrimination on the basis of any of the criteria enumerated in the legislation.”\\nNondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376, 31,439–40 (May 18,\\n2016).\\n\\n But this interpretive guidance does not do everything Doe thinks it does. While agencies\\nmay have authority to interpret statutes, they do not have authority to rewrite them. “If the intent\\nof Congress is clear, that is the end of the matter.” Chevron U.S.A., Inc. v. Nat. Res. Def.\\nCouncil, Inc., 467 U.S. 837, 842 (1984). In § 1557, as just shown, Congress made plain that it\\nprohibited discrimination in the provision of health care by incorporating and enforcing the\\nsubstantive standards of liability of the four named statutes, not changing them. There is just one\\npermissible interpretation of this language, and the agency failed to respect it. Its contrary\\nagency interpretation counts for naught.\\n\\n One last point deserves mention. It’s not clear that Doe’s interpretation of the statute\\nwould help him anyway. He thinks that some of the antidiscrimination statutes prohibit\\ndisparate-impact discrimination, and that § 1557 leaves him free to pick that standard of liability\\nand apply it to his disability-discrimination claim. But Doe, like the agency, may have a\\nmisunderstanding about how each statute works. Title VI, for example, doesn’t prohibit\\ndisparate-impact discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001). It’s\\nunlikely that Title IX, which was patterned on Title VI, does so either. See Jackson v.\\nBirmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (“Title IX implies a private right of action to\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 7\\n\\n\\nenforce its prohibition on intentional sex discrimination.”); Sandoval, 532 U.S. at 280; Cannon,\\n441 U.S. at 695–96. And contrary to the agency’s understanding, see 81 Fed. Reg. at 31,439,\\nthere is no reason to think the Age Discrimination Act of 1975 picks up this standard of liability,\\nsee Kamps v. Baylor Univ., 592 F. App’x 282, 285–86 (5th Cir. 2014). The Age Discrimination\\nin Employment Act of 1967, it is true, prohibits disparate-impact discrimination. See Smith v.\\nCity of Jackson, 544 U.S. 228, 233–40 (2005). But unlike that statute, the 1975 Age Act does\\nnot bar practices that “otherwise adversely affect” people because of their age, making any\\nanalogy (or conflation) between the two laws dubious. See Kamps, 592 F. App’x at 285–86.\\nThat leaves the legal standard of the Rehabilitation Act as Doe’s best shot, which is exactly what\\nhe gets under our reading of the statute.\\n\\n Application of the Rehabilitation Act. Section 504 of the Rehabilitation Act of 1973\\nprovides that “[n]o otherwise qualified individual with a disability in the United States . . . shall,\\nsolely by reason of her or his disability, be excluded from the participation in, be denied the\\nbenefits of, or be subjected to discrimination under any program or activity receiving Federal\\nfinancial assistance.” 29 U.S.C. § 794(a). To state a claim under the Rehabilitation Act, as\\nincorporated into the Affordable Care Act, Doe thus must allege that (1) he is an individual with\\na disability; (2) he is otherwise qualified for participation in a health program or activity; (3) he\\nis being excluded from participation in, denied the benefits of, or subjected to discrimination\\nunder the program solely by reason of his disability; and (4) the program receives federal\\nassistance. See Maddox v. Univ. of Tenn., 62 F.3d 843, 846 (6th Cir. 1995).\\n\\n We take a few things for granted—that Doe’s HIV-positive status counts as a disability\\nunder the Act, that he is otherwise qualified for his benefits plan, and that the plan receives\\nfederal funds. Even then, has Doe been excluded from participation in, denied the benefits of, or\\nsubjected to discrimination under his plan?\\n\\n No, we must conclude. BlueCross did not exclude Doe from participating in the plan or\\ndeny him benefits covered by it, as he seems to concede. And contrary to his argument, the\\nplan’s specialty medications program did not discriminate against him based on disability.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 8\\n\\n\\n Doe cannot show that BlueCross intentionally discriminated against him. The plan’s\\nspecialty medications list is neutral on its face. Some of the included medicines are apt to be\\nused by those with disabilities. But plenty of others are not, such as medicines used to treat high\\ncholesterol, osteoporosis, or allergic rhinitis, sometimes called a runny nose. See 29 U.S.C.\\n§ 705(20)(B); 42 U.S.C. § 12102(1) (defining a disability as an impairment that substantially\\nlimits one or more major life activities). The common trait linking the listed drugs is cost, not\\nthe disabled status of their users. Because the specialty medications program does not\\ndistinguish based on disability, much less “solely” so, it does not convey any discriminatory\\nintent. See Jones v. City of Monroe, 341 F.3d 474, 478 (6th Cir. 2003).\\n\\n Doe argues that, even if the plan doesn’t intentionally discriminate against the disabled, it\\ncauses a cognizable disparate impact. This raises an open question about the scope of the\\nRehabilitation Act, one we close today. In Alexander v. Choate, the Supreme Court rejected the\\n“boundless notion” that all disparate-impact showings establish a prima facie case under § 504.\\n469 U.S. 287, 299 (1985). But it “assume[d] without deciding that § 504 reaches at least some\\nconduct that has an unjustifiable disparate impact upon the handicapped.” Id.\\n\\n We now resolve what Choate did not and conclude that § 504 does not prohibit\\ndisparate-impact discrimination.\\n\\n Take the text. Disparate-impact discrimination occurs when an entity acts for a\\nnondiscriminatory reason but nevertheless disproportionately harms a protected group. See Ricci\\nv. DeStefano, 557 U.S. 557, 577 (2009). But the Rehabilitation Act bars discrimination “solely\\nby reason of her or his disability.” 29 U.S.C. § 794(a); see Lewis, 681 F.3d at 315–17. That\\nlanguage does not encompass actions taken for nondiscriminatory reasons. The language, as\\nwell, applies only to individuals who are “otherwise qualified” for the program at issue, meaning\\nthat the Act allows the disabled to be “disparately affected by legitimate job criteria.” Crocker v.\\nRunyon, 207 F.3d 314, 321 (6th Cir. 2000). All of this explains why we have remarked that\\n“[t]here is good reason to believe that a disparate impact theory is not available under the\\nRehabilitation Act.” Id. We agree, and so hold.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 9\\n\\n\\n A comparison to other antidiscrimination statutes leads to the same conclusion.\\nSection 504 “was patterned after Title VI.” Cmty. Television of S. Cal. v. Gottfried, 459 U.S.\\n498, 509 (1983). Like § 504, Title VI prohibits a person from “be[ing] excluded from\\nparticipation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination” on the\\nbasis of a protected classification. 42 U.S.C. § 2000d. And Title VI does not reach\\ndisparate-impact discrimination. See Sandoval, 532 U.S. at 280–81. By contrast, when the\\nCourt has found that a statute prohibits disparate-impact discrimination, it has relied on language\\nlike “otherwise adversely affect” or “otherwise make unavailable,” which refers to the\\nconsequences of an action rather than the actor’s intent. See Tex. Dep’t of Hous. & Cmty. Affairs\\nv. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2518–19 (2015) (Fair Housing Act); Smith,\\n544 U.S. at 235–36 (1967 Age Act); Griggs v. Duke Power Co., 401 U.S. 424, 429–31 (1971)\\n(Title VII). That language is missing from § 504, just as it is missing from Title VI.\\n\\n The oddity of applying disparate-impact discrimination in this area points in the same\\ndirection. Because many neutral (and well-intentioned) policies disparately affect the disabled—\\nthe point of such laws most often is to ease the burden of having a disability—the proposed use\\nof the theory under § 504 “could lead to a wholly unwieldy administrative and adjudicative\\nburden.” Choate, 469 U.S. at 298. With thirty years of hindsight, we can go one step further.\\nEven entertaining the idea of disparate-impact liability in this area invites fruitless challenges to\\nlegitimate, and utterly nondiscriminatory, distinctions, as this case aptly shows.\\n\\n Perhaps, one might argue, the Court’s assumption in Choate should count as something\\nmore. After all, at the same time the Court recognized that § 504 “was patterned after and is\\nalmost identical to” Title VI, it also said that “too facile an assimilation of Title VI law to § 504\\nmust be resisted.” Id. at 293 n.7. It then chose to “assume without deciding” that § 504 means\\nsomething different than its twin. See id. at 299. But the Court’s words of caution about the\\nrelationship between the two statutes do not foreclose our own analysis. The key word is\\n“assume.” Because Choate did not decide the issue either way, and in fact expressed\\nreservations about the effects of disparate-impact liability in this area, we remain free to hold that\\n§ 504 does not cover disparate-impact claims.\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 10\\n\\n\\n Other courts of appeals, we realize, have made the same assumption that Choate did.\\nSee, e.g., Ruskai v. Pistole, 775 F.3d 61, 78 (1st Cir. 2014); CG v. Pa. Dep’t of Educ., 734 F.3d\\n229, 236 (3d Cir. 2013); Berg v. Fla. Dep’t of Labor & Emp’t Sec., Div. of Vocational Rehab.,\\n163 F.3d 1251, 1254 (11th Cir. 1998). And indeed at least two have acted on it. See McWright\\nv. Alexander, 982 F.2d 222, 228–29 (7th Cir. 1992); Robinson v. Kansas, 295 F.3d 1183, 1187\\n(10th Cir. 2002). But in recognizing disparate-impact claims, the cases overlooked the\\n“essentially identical” text of Title VI and § 504, elevating the purpose of § 504 in light of the\\n“different aim of the Rehabilitation Act as well as the different context in which the Act was\\npassed.” Robinson, 295 F.3d at 1187. Even assuming these cases correctly describe the purpose\\nof the Act, “[n]o legislation pursues its purposes at all costs.” Pension Benefit Guar. Corp. v.\\nLTV Corp., 496 U.S. 633, 646 (1990) (quotation omitted). By any conventional measure, the\\ntext leaves no room for the statute to prohibit disparate-impact discrimination.\\n\\n Doe tries to counter this conclusion on two main grounds. He says that BlueCross’s\\ninclusion of some drugs used by the non-disabled on the specialty medications list was a pretext\\nto cover its intentional discrimination against those with disabilities. But why that is so is never\\nexplained. The reality remains that this lengthy list treats the disabled and non-disabled alike,\\nremoving any possibility that BlueCross targeted individuals with disabilities. Jones, 341 F.3d at\\n478.\\n\\n Doe also argues that BlueCross wrongfully denied his request for an accommodation,\\nnamely letting him buy the medicine at his local pharmacy. A claim based on a denial of a\\nreasonable accommodation differs from a disparate-impact claim. See Ability Ctr. of Greater\\nToledo v. City of Sandusky, 385 F.3d 901, 904 n.4 (6th Cir. 2004); Henrietta D. v. Bloomberg,\\n331 F.3d 261, 276–77 (2d Cir. 2003); see also Lee v. City of Los Angeles, 250 F.3d 668, 690–91\\n(9th Cir. 2001). Under the Rehabilitation Act, a disabled person is “otherwise qualified” for a\\nprogram if he could meet its requirements with a reasonable accommodation. See Kaltenberger\\nv. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also 29 U.S.C. § 794(d);\\n28 C.F.R. § 41.53. And when that holds true, a denial of the requested accommodation may\\namount to unlawful discrimination. See Kaltenberger, 162 F.3d at 435–36. But that distinction\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 11\\n\\n\\ndoes not help Doe. He forfeited his reasonable accommodation argument by failing to articulate\\nit below. See Doe v. Miami Univ., 882 F.3d 579, 594–95 (6th Cir. 2018).\\n\\n The Americans with Disabilities Act claim. Doe separately claims that BlueCross\\ndiscriminated against him in violation of Title III of the Americans with Disabilities Act. The\\nnature of the claim—that BlueCross discriminated against his use of a public accommodation,\\nthe local pharmacy—has a familiar ring to it. And so, regrettably for him, does our conclusion.\\n\\n The Americans with Disabilities Act prohibits disability discrimination in the enjoyment\\nof public accommodations “by any person who owns, leases (or leases to), or operates a place of\\npublic accommodation.” 42 U.S.C. § 12182(a). A pharmacy counts as a public accommodation.\\nId. § 12181(7)(F).\\n\\n Because BlueCross doesn’t own, lease, or operate Doe’s local pharmacy, his claim fails.\\nEveryone agrees that BlueCross doesn’t own or lease the pharmacy. And all dictionaries agree\\nin one way or another that the word “operate” means “[t]o direct the working of; to manage,\\nconduct, work (a railway, business, etc.).” 10 Oxford English Dictionary, supra, at 848; see Neff\\nv. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995).\\n\\n BlueCross doesn’t operate Doe’s local pharmacy in any meaningful sense of the word.\\nBlueCross does not control the pharmacy’s hours, accessibility policies, or customer service\\nprotocols. It controls just one thing related to the pharmacy: how much Doe pays out-of-pocket\\nfor a product he would like to purchase there. That type of arrangement doesn’t make BlueCross\\nthe pharmacy’s manager.\\n\\n Doe insists otherwise, noting the connection between the specialty medications program\\nand his diminished access to medicine. Yes, BlueCross may in one sense be responsible for\\ndenying him in-network benefits at the pharmacy. The same, however, could be said of\\nCongress, which wrote the Americans with Disabilities Act and which in another sense is\\nresponsible for BlueCross not having to make this accommodation. But neither of these things\\nmakes them managers of the pharmacy. The truth of the matter is that Doe targets BlueCross’s\\noperation of his health care plan, not its control over his pharmacy. And Doe’s health plan\\n\\f No. 18-5897 Doe v. BlueCross BlueShield of Tenn., Inc. Page 12\\n\\n\\nsimply does not qualify as a public accommodation. See Parker v. Metro. Life Ins. Co., 121 F.3d\\n1006, 1014 (6th Cir. 1997) (en banc).\\n\\n The breach of contract claim. Doe alleges that BlueCross breached its contract with him\\nby violating its implied duty of good faith and fair dealing. Tennessee law, it is true, imposes a\\nduty of good faith in the performance of contracts. Dick Broad. Co. of Tenn. v. Oak Ridge FM,\\nInc., 395 S.W.3d 653, 660 (Tenn. 2013). But as Doe seems to concede, the failure of his\\nAffordable Care Act and Americans with Disabilities Act claims dooms his argument that\\nBlueCross violated its duty of good faith by inadequately covering his Genvoya. Doe’s contract\\nclaim does not get off the ground.\\n\\n The motion for leave to amend. Doe ends by arguing that the district court should have\\nlet him amend his complaint a second time. But in his request for leave to amend, Doe did not\\nexplain to the district court how he intended to patch up his complaint. On appeal, he has\\nprovided a few hints about amendments he would like to make, but they would still leave his\\ncomplaint inadequate. A court need not grant leave to amend when doing so would be futile.\\nSee Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017).\\n\\n We affirm.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2485,"cells":{"id":{"kind":"number","value":4626945,"string":"4,626,945"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Jeffery HAVIS, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Jeffery Havis"},"decision_date":{"kind":"string","value":"2019-06-06"},"docket_number":{"kind":"string","value":"17-5772"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Cole, Daughtrey, Moore, Clay, Gibbons, Sutton, Griffin, Kethledge, White, Stranch, Donald, Thapar, Bush, Larsen, Nalbandian, Readler, Murphy\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0117p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 17-5772\\n v. │\\n │\\n │\\n JEFFERY HAVIS, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee of Chattanooga.\\n No. 1:16-cr-00121-1—Travis R. McDonough, District Judge.\\n\\n Decided and Filed: June 6, 2019\\n\\n BEFORE: COLE, Chief Judge; DAUGHTREY, MOORE, CLAY, GIBBONS, SUTTON,\\n GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,\\n NALBANDIAN, READLER and MURPHY, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\nON PETITION FOR REHEARING EN BANC AND REPLY: Jennifer Niles Coffin,\\nFEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee,\\nfor Appellant. ON RESPONSE IN OPPOSITION: Luke A. McLaurin, William A. Roach, Jr.,\\nUNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:\\nCaleb Kruckenberg, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for Amicus\\nCuriae.\\n _________________\\n\\n OPINION\\n _________________\\n\\n PER CURIAM. Although it is neither a legislature nor a court, the United States\\nSentencing Commission plays a major role in criminal sentencing. But Congress has placed\\n\\f No. 17-5772 United States v. Havis Page 2\\n\\n\\ncareful limits on the way the Commission exercises that power. Jeffery Havis argues that the\\nCommission stepped beyond those limits here and, as a result, he deserves to be resentenced.\\nWe agree and REVERSE the decision of the district court.\\n\\n I. BACKGROUND\\n\\n In 2017, Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C.\\n§ 922(g)(1). Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with\\na base offense level of 14; but that level increases to 20 if the defendant has a prior conviction\\nfor a “controlled substance offense.” See USSG §§ 2K2.1(a)(4), (a)(6). At sentencing, the\\ndistrict court decided that Havis’s 17-year-old Tennessee conviction for selling and/or delivering\\ncocaine was a controlled substance offense under the Guidelines. Havis objected because the\\nTennessee statute at issue criminalizes both the “sale” and “delivery” of cocaine, and his\\ncharging documents did not specify whether his conviction was for sale, delivery, or both. See\\nTenn. Code Ann. § 39-17-417(a)(2)–(3). Under Tennessee law, “delivery” of drugs means “the\\nactual, constructive, or attempted transfer from one person to another of a controlled substance.”\\nId. § 39-17-402(6) (emphasis added). Havis therefore argued that his Tennessee conviction was\\nnot a controlled substance offense because it encompassed the mere attempt to sell cocaine, and\\nthe Guidelines’ definition of “controlled substance offense” does not include attempt crimes. See\\nUSSG § 4B1.2(b).1 The district court overruled Havis’s objection because an unpublished case\\nof this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled\\nsubstance offense. 686 F. App’x 326, 327–28 (6th Cir. 2017) (per curiam). In combination with\\nother adjustments, that left Havis with a Guidelines range of 46 to 57 months. The district court\\nsentenced him to 46 months, and he appealed.\\n\\n\\n\\n\\n 1A “controlled substance offense” under § 4B1.2(b) means:\\n an offense under federal or state law, punishable by imprisonment for a term exceeding one year,\\n that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance\\n (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)\\n with intent to manufacture, import, export, distribute, or dispense.\\n\\f No. 17-5772 United States v. Havis Page 3\\n\\n\\n A panel of this court affirmed Havis’s sentence for one reason: our decision in United\\nStates v. Evans held that the definition of “controlled substance offense” in § 4B1.2(b) includes\\nattempt crimes. United States v. Havis, 907 F.3d 439, 442 (6th Cir. 2018) (citing United States v.\\nEvans, 699 F.3d 858, 866–67 (6th Cir. 2012)). The Evans court relied on the Sentencing\\nCommission’s commentary to § 4B1.2(b), which states that a controlled substance offense\\n“includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such\\noffenses.’” Id. at 866 (quoting USSG § 4B1.2(b) comment (n.1)). But Havis objects to this\\ncommentary on a ground never raised by the parties in Evans: he argues that the Guidelines’ text\\nsays nothing about attempt, and the Sentencing Commission has no power to add attempt crimes\\nto the list of offenses in § 4B1.2(b) through commentary. We granted en banc review to address\\nthat narrow claim.2\\n\\n II. ANALYSIS\\n\\n A. Legal Framework\\n\\n Whether a prior conviction counts as a predicate offense under the Guidelines is a\\nquestion of law subject to de novo review. United States v. Wynn, 579 F.3d 567, 570 (6th Cir.\\n2009). Employing the categorical approach, we do not consider the actual conduct that led to\\nHavis’s conviction under the Tennessee statute at issue; instead, we look to the least of the acts\\ncriminalized by the elements of that statute. Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).\\nIf the least culpable conduct falls within the Guidelines’ definition of “controlled substance\\noffense,” then the statute categorically qualifies as a controlled substance offense. But if the\\nleast culpable conduct falls outside that definition, then the statute is too broad to qualify, and the\\ndistrict court erred by increasing Havis’s offense level.\\n\\n The parties agree that the least culpable conduct covered by § 39-17-417 is the attempted\\ndelivery of a controlled substance. See Tenn. Code Ann. § 39-17-402(6). The question before\\nthe court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes\\nattempt crimes. The Sentencing Commission said it does in the commentary to § 4B1.2(b). See\\n\\n 2The panel decision addressed (and rejected) a number of alternative grounds for finding that Havis’s\\nTennessee conviction did not qualify as a controlled substance offense. See Havis, 907 F.3d at 444–47. Havis does\\nnot revisit those claims in his en banc petition.\\n\\f No. 17-5772 United States v. Havis Page 4\\n\\n\\nUSSG § 4B1.2(b) comment (n.1). But the plain language of § 4B1.2(b) says nothing about\\nattempt crimes. On appeal, Havis maintains that we must look to the actual text of Guideline\\n§ 4B1.2(b). The Government asks us to defer to the Commission’s commentary.\\n\\n B. Role of the Sentencing Commission\\n\\n To decide which construction of § 4B1.2(b) prevails, we begin with the Sentencing\\nCommission and its role in our constitutional system. Congress created the Commission as an\\nindependent body “charged [] with the task of establish[ing] sentencing policies and practices for\\nthe Federal criminal justice system.” Stinson v. United States, 508 U.S. 36, 40–41 (1993)\\n(citation and internal quotation marks omitted). The Commission fulfills its purpose by issuing\\nthe Guidelines, which provide direction to judges about the type and length of sentences to\\nimpose in a given case. Id. at 41. Although judges have some discretion to deviate from the\\nGuidelines’ recommendations, our procedural rules “nevertheless impose a series of\\nrequirements on sentencing courts that cabin the exercise of that discretion.” Peugh v. United\\nStates, 569 U.S. 530, 543 (2013). A judge cannot stray from a defendant’s Guidelines range, for\\nexample, without first giving an adequate explanation for the variance. See id. The Commission\\nthus exercises a sizable piece “of the ultimate governmental power, short of capital\\npunishment”—the power to take away someone’s liberty. United States v. Winstead, 890 F.3d\\n1082, 1092 (D.C. Cir. 2018) (citation omitted).\\n\\n That power is ordinarily left to two branches of government—first to the legislature,\\nwhich creates a range of statutory penalties for each federal crime, and then to judges, who\\nsentence defendants within the statutory framework. But the Commission falls squarely in\\nneither the legislative nor the judicial branch; rather, it is “an unusual hybrid in structure and\\nauthority,” entailing elements of both quasi-legislative and quasi-judicial power. Mistretta v.\\nUnited States, 488 U.S. 361, 412 (1989). In Mistretta, the Supreme Court explained how the\\nCommission functions in this dual role without disrupting the balance of authority in our\\nconstitutional structure. Although the Commission is nominally a part of the judicial branch, it\\nremains “fully accountable to Congress,” which reviews each guideline before it takes effect. Id.\\nat 393–94; see also 28 U.S.C. § 994(p). The rulemaking of the Commission, moreover, “is\\nsubject to the notice and comment requirements of the Administrative Procedure Act.” Id. at\\n\\f No. 17-5772 United States v. Havis Page 5\\n\\n\\n394; see also 28 U.S.C. § 994(x). These two constraints—congressional review and notice and\\ncomment—stand to safeguard the Commission from uniting legislative and judicial authority in\\nviolation of the separation of powers.\\n\\n Unlike the Guidelines themselves, however, commentary to the Guidelines never passes\\nthrough the gauntlets of congressional review or notice and comment. That is also not a\\nproblem, the Supreme Court tells us, because commentary has no independent legal force—it\\nserves only to interpret the Guidelines’ text, not to replace or modify it. See Stinson, 508 U.S. at\\n44–46; see also United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (en banc) (“[T]he\\napplication notes are interpretations of, not additions to, the Guidelines themselves . . . .”).\\nCommentary binds courts only “if the guideline which the commentary interprets will bear the\\nconstruction.” Stinson, 508 U.S. at 46. Thus, we need not accept an interpretation that is\\n“plainly erroneous or inconsistent with the” corresponding guideline. Id. at 45 (citation omitted).\\n\\n C. Defining “Controlled Substance Offense”\\n\\n The Government urges us to find that the commentary at issue here—Application Note 1\\nto § 4B1.2, which adds attempt crimes to the list of controlled substance offenses under\\n§ 4B1.2(b)—is not a “plainly erroneous” interpretation of the corresponding guideline. 3 But the\\nGovernment sidesteps a threshold question: is this really an “interpretation” at all? The guideline\\nexpressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4);\\nnone are attempt crimes. And the Commission knows how to include attempt crimes when it\\nwants to—in subsection (a) of the same guideline, for example, the Commission defines “crime\\nof violence” as including offenses that have “as an element the use, attempted use, or threatened\\nuse of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added).\\n\\n\\n\\n 3The Government argues in the alternative that the real commentary at issue is Application Note 1 to\\n§ 2K2.1, which cross-references the definition of “controlled substance offense” in Application Note 1 to § 4B1.2.\\nThe Government never made that argument in the district court or before the initial panel on appeal and arguably has\\nforfeited its right to do so now. At any rate, it makes no difference whether we begin with § 2K2.1 to determine the\\nmeaning of “controlled substance offense.” The commentary to § 2K2.1 directs us to apply “the meaning given that\\nterm in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” If anything, the Government’s proposed\\ndefinition—which would require us to defer to commentary on other commentary—would carry an even more\\ntenuous connection to the guideline’s text.\\n\\f No. 17-5772 United States v. Havis Page 6\\n\\n\\n To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in\\nthe guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the\\nCommission used Application Note 1 to add an offense not listed in the guideline. But\\napplication notes are to be “interpretations of, not additions to, the Guidelines themselves.”\\nRollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the\\nGuidelines constitutional in the first place—congressional review and notice and comment—\\nwould lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to\\nexpand the definition of ‘controlled substance offenses’ to include attempts, it may seek to\\namend the language of the guidelines by submitting the change for congressional review.”). The\\nCommission’s use of commentary to add attempt crimes to the definition of “controlled\\nsubstance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear\\nthat attempt crimes do not qualify as controlled substance offenses.\\n\\n III. CONCLUSION\\n\\n The Guidelines’ definition of “controlled substance offense” does not include attempt\\ncrimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a\\ncontrolled substance, the district court erred by using Havis’s Tennessee conviction as a basis for\\nincreasing his offense level. We therefore REVERSE the district court’s decision and\\nREMAND for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 4The Government also suggests that the use of the term “prohibits” in § 4B1.2(b) expands the scope of the\\nguideline to cover attempt crimes. Once again, the Government never made this argument in the district court or\\nbefore the initial panel on appeal. Regardless, the guideline’s boilerplate use of the term “prohibits” simply states\\nthe obvious: criminal statutes proscribe conduct. See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926)\\n(“Penal statutes prohibit[] the doing of certain things, and provid[e] a punishment for their violation . . . .”).\\nThat does not help the Government.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4404198/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"COLE"},"judge2":{"kind":"string","value":"DAUGHTREY"},"judge3":{"kind":"string","value":"MOORE"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"CLAY; GIBBONS; SUTTON; GRIFFIN; KETHLEDGE; WHITE; STRANCH; DONALD; THAPAR; BUSH; LARSEN; NALBANDIAN; READLER; MURPHY"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4626945/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery HAVIS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0117p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 17-5772\n v. │\n │\n │\n JEFFERY HAVIS, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Tennessee of Chattanooga.\n No. 1:16-cr-00121-1—Travis R. McDonough, District Judge.\n\n Decided and Filed: June 6, 2019\n\n BEFORE: COLE, Chief Judge; DAUGHTREY, MOORE, CLAY, GIBBONS, SUTTON,\n GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,\n NALBANDIAN, READLER and MURPHY, Circuit Judges.\n\n _________________\n\n COUNSEL\nON PETITION FOR REHEARING EN BANC AND REPLY: Jennifer Niles Coffin,\nFEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee,\nfor Appellant. ON RESPONSE IN OPPOSITION: Luke A. McLaurin, William A. Roach, Jr.,\nUNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:\nCaleb Kruckenberg, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for Amicus\nCuriae.\n _________________\n\n OPINION\n _________________\n\n PER CURIAM. Although it is neither a legislature nor a court, the United States\nSentencing Commission plays a major role in criminal sentencing. But Congress has placed\n\f No. 17-5772 United States v. Havis Page 2\n\n\ncareful limits on the way the Commission exercises that power. Jeffery Havis argues that the\nCommission stepped beyond those limits here and, as a result, he deserves to be resentenced.\nWe agree and REVERSE the decision of the district court.\n\n I. BACKGROUND\n\n In 2017, Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C.\n§ 922(g)(1). Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with\na base offense level of 14; but that level increases to 20 if the defendant has a prior conviction\nfor a “controlled substance offense.” See USSG §§ 2K2.1(a)(4), (a)(6). At sentencing, the\ndistrict court decided that Havis’s 17-year-old Tennessee conviction for selling and/or delivering\ncocaine was a controlled substance offense under the Guidelines. Havis objected because the\nTennessee statute at issue criminalizes both the “sale” and “delivery” of cocaine, and his\ncharging documents did not specify whether his conviction was for sale, delivery, or both. See\nTenn. Code Ann. § 39-17-417(a)(2)–(3). Under Tennessee law, “delivery” of drugs means “the\nactual, constructive, or attempted transfer from one person to another of a controlled substance.”\nId. § 39-17-402(6) (emphasis added). Havis therefore argued that his Tennessee conviction was\nnot a controlled substance offense because it encompassed the mere attempt to sell cocaine, and\nthe Guidelines’ definition of “controlled substance offense” does not include attempt crimes. See\nUSSG § 4B1.2(b).1 The district court overruled Havis’s objection because an unpublished case\nof this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled\nsubstance offense. 686 F. App’x 326, 327–28 (6th Cir. 2017) (per curiam). In combination with\nother adjustments, that left Havis with a Guidelines range of 46 to 57 months. The district court\nsentenced him to 46 months, and he appealed.\n\n\n\n\n 1A “controlled substance offense” under § 4B1.2(b) means:\n an offense under federal or state law, punishable by imprisonment for a term exceeding one year,\n that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance\n (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)\n with intent to manufacture, import, export, distribute, or dispense.\n\f No. 17-5772 United States v. Havis Page 3\n\n\n A panel of this court affirmed Havis’s sentence for one reason: our decision in United\nStates v. Evans held that the definition of “controlled substance offense” in § 4B1.2(b) includes\nattempt crimes. United States v. Havis, 907 F.3d 439, 442 (6th Cir. 2018) (citing United States v.\nEvans, 699 F.3d 858, 866–67 (6th Cir. 2012)). The Evans court relied on the Sentencing\nCommission’s commentary to § 4B1.2(b), which states that a controlled substance offense\n“includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such\noffenses.’” Id. at 866 (quoting USSG § 4B1.2(b) comment (n.1)). But Havis objects to this\ncommentary on a ground never raised by the parties in Evans: he argues that the Guidelines’ text\nsays nothing about attempt, and the Sentencing Commission has no power to add attempt crimes\nto the list of offenses in § 4B1.2(b) through commentary. We granted en banc review to address\nthat narrow claim.2\n\n II. ANALYSIS\n\n A. Legal Framework\n\n Whether a prior conviction counts as a predicate offense under the Guidelines is a\nquestion of law subject to de novo review. United States v. Wynn, 579 F.3d 567, 570 (6th Cir.\n2009). Employing the categorical approach, we do not consider the actual conduct that led to\nHavis’s conviction under the Tennessee statute at issue; instead, we look to the least of the acts\ncriminalized by the elements of that statute. Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).\nIf the least culpable conduct falls within the Guidelines’ definition of “controlled substance\noffense,” then the statute categorically qualifies as a controlled substance offense. But if the\nleast culpable conduct falls outside that definition, then the statute is too broad to qualify, and the\ndistrict court erred by increasing Havis’s offense level.\n\n The parties agree that the least culpable conduct covered by § 39-17-417 is the attempted\ndelivery of a controlled substance. See Tenn. Code Ann. § 39-17-402(6). The question before\nthe court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes\nattempt crimes. The Sentencing Commission said it does in the commentary to § 4B1.2(b). See\n\n 2The panel decision addressed (and rejected) a number of alternative grounds for finding that Havis’s\nTennessee conviction did not qualify as a controlled substance offense. See Havis, 907 F.3d at 444–47. Havis does\nnot revisit those claims in his en banc petition.\n\f No. 17-5772 United States v. Havis Page 4\n\n\nUSSG § 4B1.2(b) comment (n.1). But the plain language of § 4B1.2(b) says nothing about\nattempt crimes. On appeal, Havis maintains that we must look to the actual text of Guideline\n§ 4B1.2(b). The Government asks us to defer to the Commission’s commentary.\n\n B. Role of the Sentencing Commission\n\n To decide which construction of § 4B1.2(b) prevails, we begin with the Sentencing\nCommission and its role in our constitutional system. Congress created the Commission as an\nindependent body “charged [] with the task of establish[ing] sentencing policies and practices for\nthe Federal criminal justice system.” Stinson v. United States, 508 U.S. 36, 40–41 (1993)\n(citation and internal quotation marks omitted). The Commission fulfills its purpose by issuing\nthe Guidelines, which provide direction to judges about the type and length of sentences to\nimpose in a given case. Id. at 41. Although judges have some discretion to deviate from the\nGuidelines’ recommendations, our procedural rules “nevertheless impose a series of\nrequirements on sentencing courts that cabin the exercise of that discretion.” Peugh v. United\nStates, 569 U.S. 530, 543 (2013). A judge cannot stray from a defendant’s Guidelines range, for\nexample, without first giving an adequate explanation for the variance. See id. The Commission\nthus exercises a sizable piece “of the ultimate governmental power, short of capital\npunishment”—the power to take away someone’s liberty. United States v. Winstead, 890 F.3d\n1082, 1092 (D.C. Cir. 2018) (citation omitted).\n\n That power is ordinarily left to two branches of government—first to the legislature,\nwhich creates a range of statutory penalties for each federal crime, and then to judges, who\nsentence defendants within the statutory framework. But the Commission falls squarely in\nneither the legislative nor the judicial branch; rather, it is “an unusual hybrid in structure and\nauthority,” entailing elements of both quasi-legislative and quasi-judicial power. Mistretta v.\nUnited States, 488 U.S. 361, 412 (1989). In Mistretta, the Supreme Court explained how the\nCommission functions in this dual role without disrupting the balance of authority in our\nconstitutional structure. Although the Commission is nominally a part of the judicial branch, it\nremains “fully accountable to Congress,” which reviews each guideline before it takes effect. Id.\nat 393–94; see also 28 U.S.C. § 994(p). The rulemaking of the Commission, moreover, “is\nsubject to the notice and comment requirements of the Administrative Procedure Act.” Id. at\n\f No. 17-5772 United States v. Havis Page 5\n\n\n394; see also 28 U.S.C. § 994(x). These two constraints—congressional review and notice and\ncomment—stand to safeguard the Commission from uniting legislative and judicial authority in\nviolation of the separation of powers.\n\n Unlike the Guidelines themselves, however, commentary to the Guidelines never passes\nthrough the gauntlets of congressional review or notice and comment. That is also not a\nproblem, the Supreme Court tells us, because commentary has no independent legal force—it\nserves only to interpret the Guidelines’ text, not to replace or modify it. See Stinson, 508 U.S. at\n44–46; see also United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (en banc) (“[T]he\napplication notes are interpretations of, not additions to, the Guidelines themselves . . . .”).\nCommentary binds courts only “if the guideline which the commentary interprets will bear the\nconstruction.” Stinson, 508 U.S. at 46. Thus, we need not accept an interpretation that is\n“plainly erroneous or inconsistent with the” corresponding guideline. Id. at 45 (citation omitted).\n\n C. Defining “Controlled Substance Offense”\n\n The Government urges us to find that the commentary at issue here—Application Note 1\nto § 4B1.2, which adds attempt crimes to the list of controlled substance offenses under\n§ 4B1.2(b)—is not a “plainly erroneous” interpretation of the corresponding guideline. 3 But the\nGovernment sidesteps a threshold question: is this really an “interpretation” at all? The guideline\nexpressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4);\nnone are attempt crimes. And the Commission knows how to include attempt crimes when it\nwants to—in subsection (a) of the same guideline, for example, the Commission defines “crime\nof violence” as including offenses that have “as an element the use, attempted use, or threatened\nuse of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added).\n\n\n\n 3The Government argues in the alternative that the real commentary at issue is Application Note 1 to\n§ 2K2.1, which cross-references the definition of “controlled substance offense” in Application Note 1 to § 4B1.2.\nThe Government never made that argument in the district court or before the initial panel on appeal and arguably has\nforfeited its right to do so now. At any rate, it makes no difference whether we begin with § 2K2.1 to determine the\nmeaning of “controlled substance offense.” The commentary to § 2K2.1 directs us to apply “the meaning given that\nterm in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” If anything, the Government’s proposed\ndefinition—which would require us to defer to commentary on other commentary—would carry an even more\ntenuous connection to the guideline’s text.\n\f No. 17-5772 United States v. Havis Page 6\n\n\n To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in\nthe guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the\nCommission used Application Note 1 to add an offense not listed in the guideline. But\napplication notes are to be “interpretations of, not additions to, the Guidelines themselves.”\nRollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the\nGuidelines constitutional in the first place—congressional review and notice and comment—\nwould lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to\nexpand the definition of ‘controlled substance offenses’ to include attempts, it may seek to\namend the language of the guidelines by submitting the change for congressional review.”). The\nCommission’s use of commentary to add attempt crimes to the definition of “controlled\nsubstance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear\nthat attempt crimes do not qualify as controlled substance offenses.\n\n III. CONCLUSION\n\n The Guidelines’ definition of “controlled substance offense” does not include attempt\ncrimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a\ncontrolled substance, the district court erred by using Havis’s Tennessee conviction as a basis for\nincreasing his offense level. We therefore REVERSE the district court’s decision and\nREMAND for further proceedings consistent with this opinion.\n\n\n\n\n 4The Government also suggests that the use of the term “prohibits” in § 4B1.2(b) expands the scope of the\nguideline to cover attempt crimes. Once again, the Government never made this argument in the district court or\nbefore the initial panel on appeal. Regardless, the guideline’s boilerplate use of the term “prohibits” simply states\nthe obvious: criminal statutes proscribe conduct. See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926)\n(“Penal statutes prohibit[] the doing of certain things, and provid[e] a punishment for their violation . . . .”).\nThat does not help the Government.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery HAVIS, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-06\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0117p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 17-5772\\n v. │\\n │\\n │\\n JEFFERY HAVIS, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee of Chattanooga.\\n No. 1:16-cr-00121-1—Travis R. McDonough, District Judge.\\n\\n Decided and Filed: June 6, 2019\\n\\n BEFORE: COLE, Chief Judge; DAUGHTREY, MOORE, CLAY, GIBBONS, SUTTON,\\n GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,\\n NALBANDIAN, READLER and MURPHY, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\nON PETITION FOR REHEARING EN BANC AND REPLY: Jennifer Niles Coffin,\\nFEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee,\\nfor Appellant. ON RESPONSE IN OPPOSITION: Luke A. McLaurin, William A. Roach, Jr.,\\nUNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:\\nCaleb Kruckenberg, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for Amicus\\nCuriae.\\n _________________\\n\\n OPINION\\n _________________\\n\\n PER CURIAM. Although it is neither a legislature nor a court, the United States\\nSentencing Commission plays a major role in criminal sentencing. But Congress has placed\\n\\f No. 17-5772 United States v. Havis Page 2\\n\\n\\ncareful limits on the way the Commission exercises that power. Jeffery Havis argues that the\\nCommission stepped beyond those limits here and, as a result, he deserves to be resentenced.\\nWe agree and REVERSE the decision of the district court.\\n\\n I. BACKGROUND\\n\\n In 2017, Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C.\\n§ 922(g)(1). Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with\\na base offense level of 14; but that level increases to 20 if the defendant has a prior conviction\\nfor a “controlled substance offense.” See USSG §§ 2K2.1(a)(4), (a)(6). At sentencing, the\\ndistrict court decided that Havis’s 17-year-old Tennessee conviction for selling and/or delivering\\ncocaine was a controlled substance offense under the Guidelines. Havis objected because the\\nTennessee statute at issue criminalizes both the “sale” and “delivery” of cocaine, and his\\ncharging documents did not specify whether his conviction was for sale, delivery, or both. See\\nTenn. Code Ann. § 39-17-417(a)(2)–(3). Under Tennessee law, “delivery” of drugs means “the\\nactual, constructive, or attempted transfer from one person to another of a controlled substance.”\\nId. § 39-17-402(6) (emphasis added). Havis therefore argued that his Tennessee conviction was\\nnot a controlled substance offense because it encompassed the mere attempt to sell cocaine, and\\nthe Guidelines’ definition of “controlled substance offense” does not include attempt crimes. See\\nUSSG § 4B1.2(b).1 The district court overruled Havis’s objection because an unpublished case\\nof this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled\\nsubstance offense. 686 F. App’x 326, 327–28 (6th Cir. 2017) (per curiam). In combination with\\nother adjustments, that left Havis with a Guidelines range of 46 to 57 months. The district court\\nsentenced him to 46 months, and he appealed.\\n\\n\\n\\n\\n 1A “controlled substance offense” under § 4B1.2(b) means:\\n an offense under federal or state law, punishable by imprisonment for a term exceeding one year,\\n that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance\\n (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)\\n with intent to manufacture, import, export, distribute, or dispense.\\n\\f No. 17-5772 United States v. Havis Page 3\\n\\n\\n A panel of this court affirmed Havis’s sentence for one reason: our decision in United\\nStates v. Evans held that the definition of “controlled substance offense” in § 4B1.2(b) includes\\nattempt crimes. United States v. Havis, 907 F.3d 439, 442 (6th Cir. 2018) (citing United States v.\\nEvans, 699 F.3d 858, 866–67 (6th Cir. 2012)). The Evans court relied on the Sentencing\\nCommission’s commentary to § 4B1.2(b), which states that a controlled substance offense\\n“includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such\\noffenses.’” Id. at 866 (quoting USSG § 4B1.2(b) comment (n.1)). But Havis objects to this\\ncommentary on a ground never raised by the parties in Evans: he argues that the Guidelines’ text\\nsays nothing about attempt, and the Sentencing Commission has no power to add attempt crimes\\nto the list of offenses in § 4B1.2(b) through commentary. We granted en banc review to address\\nthat narrow claim.2\\n\\n II. ANALYSIS\\n\\n A. Legal Framework\\n\\n Whether a prior conviction counts as a predicate offense under the Guidelines is a\\nquestion of law subject to de novo review. United States v. Wynn, 579 F.3d 567, 570 (6th Cir.\\n2009). Employing the categorical approach, we do not consider the actual conduct that led to\\nHavis’s conviction under the Tennessee statute at issue; instead, we look to the least of the acts\\ncriminalized by the elements of that statute. Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).\\nIf the least culpable conduct falls within the Guidelines’ definition of “controlled substance\\noffense,” then the statute categorically qualifies as a controlled substance offense. But if the\\nleast culpable conduct falls outside that definition, then the statute is too broad to qualify, and the\\ndistrict court erred by increasing Havis’s offense level.\\n\\n The parties agree that the least culpable conduct covered by § 39-17-417 is the attempted\\ndelivery of a controlled substance. See Tenn. Code Ann. § 39-17-402(6). The question before\\nthe court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes\\nattempt crimes. The Sentencing Commission said it does in the commentary to § 4B1.2(b). See\\n\\n 2The panel decision addressed (and rejected) a number of alternative grounds for finding that Havis’s\\nTennessee conviction did not qualify as a controlled substance offense. See Havis, 907 F.3d at 444–47. Havis does\\nnot revisit those claims in his en banc petition.\\n\\f No. 17-5772 United States v. Havis Page 4\\n\\n\\nUSSG § 4B1.2(b) comment (n.1). But the plain language of § 4B1.2(b) says nothing about\\nattempt crimes. On appeal, Havis maintains that we must look to the actual text of Guideline\\n§ 4B1.2(b). The Government asks us to defer to the Commission’s commentary.\\n\\n B. Role of the Sentencing Commission\\n\\n To decide which construction of § 4B1.2(b) prevails, we begin with the Sentencing\\nCommission and its role in our constitutional system. Congress created the Commission as an\\nindependent body “charged [] with the task of establish[ing] sentencing policies and practices for\\nthe Federal criminal justice system.” Stinson v. United States, 508 U.S. 36, 40–41 (1993)\\n(citation and internal quotation marks omitted). The Commission fulfills its purpose by issuing\\nthe Guidelines, which provide direction to judges about the type and length of sentences to\\nimpose in a given case. Id. at 41. Although judges have some discretion to deviate from the\\nGuidelines’ recommendations, our procedural rules “nevertheless impose a series of\\nrequirements on sentencing courts that cabin the exercise of that discretion.” Peugh v. United\\nStates, 569 U.S. 530, 543 (2013). A judge cannot stray from a defendant’s Guidelines range, for\\nexample, without first giving an adequate explanation for the variance. See id. The Commission\\nthus exercises a sizable piece “of the ultimate governmental power, short of capital\\npunishment”—the power to take away someone’s liberty. United States v. Winstead, 890 F.3d\\n1082, 1092 (D.C. Cir. 2018) (citation omitted).\\n\\n That power is ordinarily left to two branches of government—first to the legislature,\\nwhich creates a range of statutory penalties for each federal crime, and then to judges, who\\nsentence defendants within the statutory framework. But the Commission falls squarely in\\nneither the legislative nor the judicial branch; rather, it is “an unusual hybrid in structure and\\nauthority,” entailing elements of both quasi-legislative and quasi-judicial power. Mistretta v.\\nUnited States, 488 U.S. 361, 412 (1989). In Mistretta, the Supreme Court explained how the\\nCommission functions in this dual role without disrupting the balance of authority in our\\nconstitutional structure. Although the Commission is nominally a part of the judicial branch, it\\nremains “fully accountable to Congress,” which reviews each guideline before it takes effect. Id.\\nat 393–94; see also 28 U.S.C. § 994(p). The rulemaking of the Commission, moreover, “is\\nsubject to the notice and comment requirements of the Administrative Procedure Act.” Id. at\\n\\f No. 17-5772 United States v. Havis Page 5\\n\\n\\n394; see also 28 U.S.C. § 994(x). These two constraints—congressional review and notice and\\ncomment—stand to safeguard the Commission from uniting legislative and judicial authority in\\nviolation of the separation of powers.\\n\\n Unlike the Guidelines themselves, however, commentary to the Guidelines never passes\\nthrough the gauntlets of congressional review or notice and comment. That is also not a\\nproblem, the Supreme Court tells us, because commentary has no independent legal force—it\\nserves only to interpret the Guidelines’ text, not to replace or modify it. See Stinson, 508 U.S. at\\n44–46; see also United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (en banc) (“[T]he\\napplication notes are interpretations of, not additions to, the Guidelines themselves . . . .”).\\nCommentary binds courts only “if the guideline which the commentary interprets will bear the\\nconstruction.” Stinson, 508 U.S. at 46. Thus, we need not accept an interpretation that is\\n“plainly erroneous or inconsistent with the” corresponding guideline. Id. at 45 (citation omitted).\\n\\n C. Defining “Controlled Substance Offense”\\n\\n The Government urges us to find that the commentary at issue here—Application Note 1\\nto § 4B1.2, which adds attempt crimes to the list of controlled substance offenses under\\n§ 4B1.2(b)—is not a “plainly erroneous” interpretation of the corresponding guideline. 3 But the\\nGovernment sidesteps a threshold question: is this really an “interpretation” at all? The guideline\\nexpressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4);\\nnone are attempt crimes. And the Commission knows how to include attempt crimes when it\\nwants to—in subsection (a) of the same guideline, for example, the Commission defines “crime\\nof violence” as including offenses that have “as an element the use, attempted use, or threatened\\nuse of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added).\\n\\n\\n\\n 3The Government argues in the alternative that the real commentary at issue is Application Note 1 to\\n§ 2K2.1, which cross-references the definition of “controlled substance offense” in Application Note 1 to § 4B1.2.\\nThe Government never made that argument in the district court or before the initial panel on appeal and arguably has\\nforfeited its right to do so now. At any rate, it makes no difference whether we begin with § 2K2.1 to determine the\\nmeaning of “controlled substance offense.” The commentary to § 2K2.1 directs us to apply “the meaning given that\\nterm in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” If anything, the Government’s proposed\\ndefinition—which would require us to defer to commentary on other commentary—would carry an even more\\ntenuous connection to the guideline’s text.\\n\\f No. 17-5772 United States v. Havis Page 6\\n\\n\\n To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in\\nthe guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the\\nCommission used Application Note 1 to add an offense not listed in the guideline. But\\napplication notes are to be “interpretations of, not additions to, the Guidelines themselves.”\\nRollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the\\nGuidelines constitutional in the first place—congressional review and notice and comment—\\nwould lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to\\nexpand the definition of ‘controlled substance offenses’ to include attempts, it may seek to\\namend the language of the guidelines by submitting the change for congressional review.”). The\\nCommission’s use of commentary to add attempt crimes to the definition of “controlled\\nsubstance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear\\nthat attempt crimes do not qualify as controlled substance offenses.\\n\\n III. CONCLUSION\\n\\n The Guidelines’ definition of “controlled substance offense” does not include attempt\\ncrimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a\\ncontrolled substance, the district court erred by using Havis’s Tennessee conviction as a basis for\\nincreasing his offense level. We therefore REVERSE the district court’s decision and\\nREMAND for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 4The Government also suggests that the use of the term “prohibits” in § 4B1.2(b) expands the scope of the\\nguideline to cover attempt crimes. Once again, the Government never made this argument in the district court or\\nbefore the initial panel on appeal. Regardless, the guideline’s boilerplate use of the term “prohibits” simply states\\nthe obvious: criminal statutes proscribe conduct. See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926)\\n(“Penal statutes prohibit[] the doing of certain things, and provid[e] a punishment for their violation . . . .”).\\nThat does not help the Government.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2486,"cells":{"id":{"kind":"number","value":8444035,"string":"8,444,035"},"name":{"kind":"string","value":"United States v. Jeffery HAVIS"},"name_abbreviation":{"kind":"string","value":"United States v. Havis"},"decision_date":{"kind":"string","value":"2019-06-06"},"docket_number":{"kind":"string","value":"No. 17-5772"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Reconsideration, Sutton\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415472/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"SUTTON"},"judge2":{"kind":"string","value":"SUTTON"},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444035/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Jeffery HAVIS\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Jeffery HAVIS\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-06\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2487,"cells":{"id":{"kind":"number","value":4627447,"string":"4,627,447"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Christopher A. GANDY (17-2020); Anthony R. Gandy (18-1106); Sharon Gandy-Micheau (18-1137), Defendants-Appellants."},"name_abbreviation":{"kind":"string","value":"United States v. Sharon Gandy-Micheau"},"decision_date":{"kind":"string","value":"2019-06-07"},"docket_number":{"kind":"string","value":"17-2020/18-1106; 18-1137"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Clay, Gilman, Kethledge\", \"parties\": \"\", \"opinions\": [{\"author\": \"RONALD LEE GILMAN, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0118p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n │\\n v. > Nos. 17-2020/18-1106/1137\\n │\\n │\\n CHRISTOPHER A. GANDY (17-2020); ANTHONY R. │\\n GANDY (18-1106); SHARON GANDY-MICHEAU │\\n (18-1137), │\\n Defendants-Appellants. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Ann Arbor.\\n No. 5:15-cr-20338—Judith E. Levy, District Judge.\\n\\n Argued: May 1, 2019\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Gary W. Crim, Dayton, Ohio, for Appellant in 17-2020. Deborah A. Solove,\\nWesterville, Ohio, for Appellant in 18-1106. Daniel R. Hurley, UNITED STATES\\nATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Gary W. Crim, Dayton,\\nOhio, for Appellant in 17-2020. Deborah A. Solove, Westerville, Ohio, for Appellant in 18-\\n1106. Andrew P. Avellano, Columbus, Ohio, for Appellant in 18-1137. Daniel R. Hurley,\\nUNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n RONALD LEE GILMAN, Circuit Judge. Anthony Gandy, his brother Christopher\\nGandy, their sister Sharon Gandy-Micheau, and Sharon’s husband Durand Micheau sought tax\\nrefunds for 21 separate fictitious trusts that they created. The defendants’ scheme was to submit\\nfictitious tax returns to the Internal Revenue Service (IRS) for the purpose of claiming refunds\\nfor nonexistent excess withholding. They were successful in obtaining refund checks based upon\\nmany of these returns, receiving over $360,000 in ill-gotten money. The defendants were\\nconvicted of several crimes, including mail fraud, conspiracy to commit mail fraud, aggravated\\nidentity theft, conspiracy to commit identity theft, and illegal monetary transactions.\\n\\n Anthony, Christopher, and Sharon now appeal, arguing that (1) insufficient evidence\\nsupports Sharon’s convictions, (2) insufficient evidence supports the finding that Anthony and\\nSharon knew that they were using the names and personal identifying information of real people,\\n(3) Anthony and Christopher were deprived of the effective assistance of counsel because their\\nstate-bar grievances against their attorneys created conflicts of interest, (4) the indictment was\\nduplicitous regarding the aggravated-identify-theft charges and the district court failed to cure\\nthis defect by issuing a specific unanimity jury instruction, (5) the court’s aiding-and-abetting\\njury instruction was legally incorrect, and (6) insufficient evidence supports the court’s\\naiding-and-abetting jury instruction. For the reasons set forth below, we AFFIRM all aspects of\\nthe district court’s judgment.\\n\\n I. BACKGROUND\\n\\nA. Factual background\\n\\n The defendants created trust documents using their own names, their friends’ names, or\\nthe names of identity-theft victims as trustees, successor trustees, and beneficiaries. They then\\nobtained an Employer Identification Number (EIN) from the IRS for each trust. Using these\\nEINs, they submitted fictitious IRS Form 1041s, the form used for income-tax returns for estates\\nand trusts. These tax returns falsely claimed that substantially more income had been withheld\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 3\\n\\n\\nfrom each trust than was due in tax liability, and that the trust was accordingly due a refund in\\nthe amount of the excess withholding.\\n\\n On at least 14 occasions, the IRS relied on the veracity of the signed returns, which were\\nsubmitted under penalty of perjury, and issued refund checks to the fictitious trusts. The checks\\nwere generally mailed to Post Office (P.O.) Boxes that the defendants had obtained. Once they\\nreceived the checks, the defendants deposited the funds into bank accounts that they had created\\nfor the trusts, or at supermarkets or check-cashing businesses in Detroit that charged high fees.\\nAll told, the defendants requested $1,425,548 in refunds, the IRS issued refund checks totaling\\n$939,103.05, and the defendants netted $360,469.05 from those checks. The defendants were\\nnot able to obtain the full $939.103.05 because several of the banks closed the trust accounts\\nbefore the defendants were able to withdraw all the funds. In addition, the IRS seized two\\nchecks sent to a P.O. Box at a UPS store because the owner of the store alerted the authorities\\nabout the suspicious checks.\\n\\n The defendants used their own identities in the early days of the scheme. In June 2012,\\nfor example, a Form 1041 was submitted to the IRS on behalf of the Sharon Trust Fund.\\nSharon’s sister Pamela Gandy signed the return and sought a refund of $33,856 for excess\\nwithholding. Sharon was listed as the trustee of the fund and the return was mailed by Anthony.\\nFurthermore, the return address was listed as a P.O. Box that was obtained by Sharon using her\\nreal driver’s license. Sharon also used her real identification to cash the refund check at a\\nsupermarket in Detroit.\\n\\n The defendants then recruited family, friends, and acquaintances to lend their personal\\ninformation for use in the scheme. For instance, Christopher and his fiancée, Deyana Wagner,\\nsubmitted a return on behalf of a fictitious C&D Trust. They had the check sent to a P.O. Box\\nrented by Anthony, and then cashed the $35,051.80 check at a check-cashing store in Detroit.\\n\\n Similarly, Anthony recruited his longtime girlfriend, Sydona Robinson, to submit a\\nfraudulent return. After Anthony established a trust in Robinson’s name using her real personal\\nidentifying information, he submitted a Form 1041 that claimed a refund of $66,629. Anthony\\nnamed his friend Derrick McCoy as a trustee and used a P.O. Box that he controlled as the return\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 4\\n\\n\\naddress. McCoy and Anthony deposited the refund check, which Robinson claimed that she\\nnever saw, into an account at Fifth Third Bank.\\n\\n Anthony also had McCoy set up a fictitious trust. A Form 1041, submitted by Anthony,\\nclaimed that McCoy’s trust was due a refund of $38,986. The refund check was mailed to\\nanother P.O. Box controlled by Anthony. McCoy and Anthony cashed the check in Detroit,\\npaying a $1,500 fee. According to McCoy, Anthony kept almost all the money for himself.\\n\\n Anthony similarly brought his friend Darry Poole into the scheme, falsely telling Poole\\nthat he would help Poole with his taxes. Instead, Anthony used Poole’s personal information to\\ncreate the Darry Poole Trust, and he then submitted a Form 1041 on behalf of the trust. Anthony\\nlisted himself as the trustee and claimed that the trust was due a $34,888 refund for excess\\nwithholding. The IRS sent a refund check for that amount to a P.O. Box controlled by Anthony,\\nwho cashed the check without giving any of the funds to Poole.\\n\\n Anthony also induced his friend Aaron Maddox to participate in the scheme. Maddox\\ntestified that Anthony had him rent a P.O. Box, which was listed as the return address for several\\ntrusts. Anthony prepared the paperwork to set up a trust in Maddox’s name and claimed a refund\\nof $58,386 for the trust, but no funds were ever sent by the IRS. Maddox’s name was used for\\nother fictitious trusts as well, including the Capital One Investment Trust and the Aspen\\nInvestment Trust.\\n\\n Christopher also recruited friends into the scheme. For instance, he falsely told his friend\\nBrandon Bradley that he could help Bradley get government money to repair houses in Detroit.\\nBradley gave Christopher his personal information, and Christopher created the Brandon Bradley\\nTrust, seeking a refund of $34,231. They received the refund check and cashed it at a local\\ncheck-cashing store, paying a fee of between $4,000 and $5,000. Bradley kept $5,000 for\\nhimself and Christopher kept the rest of the money.\\n\\n Christopher and Anthony jointly recruited Shanel Seay, who had been friends with both\\nbrothers for some time, into the fraudulent scheme. The brothers set up a trust in Seay’s name\\nand submitted a return seeking a refund of $36,550. No refund was issued for this trust, but the\\nbrothers found other ways for Seay to help with the scheme. For example, they named Seay as\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 5\\n\\n\\nthe trustee for a fictitious Deshawntia Moorer Trust. The Gandy brothers successfully obtained a\\nrefund check for this trust, and Seay opened a bank account for the trust and deposited the refund\\ncheck into the bank account. Christopher gave Seay the documents needed to open the bank\\naccount and deposit the check, and Christopher and Sharon both accompanied Seay to the bank.\\nShortly thereafter, Anthony and Christopher directed Seay to withdraw the money from the\\ntrust’s bank account in a series of withdrawals.\\n\\n The defendants also used Seay to help with another fraudulent trust. Christopher falsely\\ntold his friend Randi Hardy that he could help her get money to promote her music career. He\\nthen used Hardy’s personal information to set up a fictitious trust and filed a return for the trust,\\nseeking a refund of $83,597. Hardy denied signing the return, but she did admit to helping cash\\nthe refund check. The defendants had Seay accompany Hardy and Hardy’s cousin, who was\\nlisted as the trustee, to the bank to deposit the refund check. Seay opened a bank account for the\\ntrust and deposited the refund check into the account, but she testified that the Gandys kept\\nalmost all the funds for themselves.\\n\\n In order to run the fraudulent scheme, the defendants had to keep track of the\\ndocumentation for 21 separate trusts, obtain and track EIN numbers for each trust, complete and\\nfile a Form 1041 seeking a refund for each trust, obtain P.O. Boxes to use as the return addresses\\nfor the refund checks, open bank trust accounts, and deposit the refund checks. Sharon rented at\\nleast three P.O. Boxes in her name. Anthony rented several P.O. Boxes himself and controlled\\nseveral others that he had friends rent in their own names.\\n\\n Sharon kept digital and written records for many of the fictitious trusts. During a search\\nof her house, law-enforcement officers found two notebooks containing names, addresses, and\\nidentifying information for several identity-theft victims. They also found additional information\\nregarding dozens of other stolen identities. Moreover, the law-enforcement officers conducted\\ntrash pulls at Sharon’s house to confirm that the defendants were running a tax-fraud criminal\\nenterprise. Through these thrash pulls, they discovered that the defendants had ordered a “For\\nDeposit Only” stamp for one of their fraudulent trust accounts. The stamp purported to represent\\nthe signature of Herbert Coleman White, whose house in Detroit was robbed in 2012.\\nLaw-enforcement officers also found White’s driver’s license, Social Security card, and other\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 6\\n\\n\\npersonal identifying information during their search of Sharon’s house. The defendants used\\nWhite’s name and personal information in connection with several of the fictitious trusts that\\nthey created in order to obtain fraudulent tax-refund checks.\\n\\n A number of the names and personal information used during the scheme in fact\\nbelonged to people who had their wallets or purses stolen in the Detroit area. The identity-theft\\nvictims whose information the defendants used include Deshawntia Moorer, Kjuan Jones, Brandi\\nShorter, Alania Curry, Holly Sochocki, Rhonda Nolen, Danisha Smith, and Lia Turla. Trusts in\\nthe names of Moorer and Nolen were established by the defendants, and the defendants\\nsuccessfully obtained fraudulent tax refunds for these trusts. The defendants also set up trusts in\\nCurry’s and Shorter’s names and filed fraudulent tax returns seeking refunds. And Jones and\\nSochocki were identified as trustees of certain trusts. None of these identity-theft victims knew\\nthat their names and personal identifying information were being used in the defendants’\\nfraudulent scheme.\\n\\nB. Procedural background\\n\\n Anthony, Christopher, and Sharon were indicted on multiple counts arising out of their\\nscheme to obtain fraudulent tax refunds on behalf of these fictitious trusts. Durand Micheau\\n(Sharon’s husband), Seay, and McCoy were also indicted. Seay reached an agreement to\\ncooperate with the government and testified during the trial. Micheau’s case was severed. The\\nGandy siblings and McCoy were tried together before a jury. McCoy was acquitted, but\\nAnthony, Christopher, and Sharon were convicted on several of the counts charged in the\\nindictment. Anthony was sentenced to 80 months’ imprisonment and Christopher and Sharon\\nwere each sentenced to 72 months’ imprisonment. The district court explained that Anthony’s\\nterm of imprisonment was longer because of his criminal history. All three defendants and\\nDurand Micheau were also ordered to pay restitution, jointly and severally, in the amount of\\n$360,469.05—the amount of ill-gotten gains they collectively received.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 7\\n\\n\\n II. ANALYSIS\\n\\nA. Sufficient evidence in the record supports Sharon’s convictions.\\n\\n We begin with Sharon’s argument that there is insufficient evidence in the record to\\nsupport the verdict against her. At trial, Sharon’s counsel did not renew her motion for a\\njudgment of acquittal at the close of the evidence. See Fed. R. Crim. P. 29. We therefore must\\ndetermine “only whether the trial resulted in a ‘manifest miscarriage of justice.’” See United\\nStates v. Williams, 612 F.3d 417, 423 (6th Cir. 2010) (quoting United States v. Khalil, 279 F.3d\\n358, 368 (6th Cir. 2002)). A manifest miscarriage of justice means that the record is “‘devoid’ of\\nevidence of guilt.” Id. (quoting United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998)).\\n\\n Sharon was convicted of mail fraud, conspiracy to commit mail fraud, aggravated identity\\ntheft, conspiracy to commit identity theft, and illegal monetary transactions. She argues\\ngenerally that none of the convictions can stand because the record is devoid of evidence that she\\nhad the intent to defraud anyone. More specifically, she argues that there was no evidence\\ndemonstrating that she knew that the trusts she helped set up would be used for illicit purposes.\\n\\n We are not persuaded that the record is devoid of evidence of Sharon’s guilt. Among\\nother things, she personally cashed a check from the IRS for $33,856 at a supermarket in Detroit.\\nThe check was made out to the Sharon Trust Fund, and she knew the nine-digit EIN assigned to\\nthe trust by the IRS. This refund check was issued because of a tax return filed by the trust and\\nsigned by Sharon’s sister that falsely claimed that the trust had $33,856 in earnings withheld\\ndespite the fact that the trust had no taxable income. And Sharon did more than just cash refund\\nchecks. She rented P.O. Boxes used to obtain some of the refund checks and went to the bank to\\nassist in setting up fraudulent trust accounts on multiple occasions.\\n\\n In addition, the evidence found in Sharon’s house constitutes proof regarding her\\nknowledge that the refund checks that she cashed were fraudulently obtained. Law-enforcement\\nofficers found her notebooks containing information for several of the fictitious trusts and\\nfraudulent returns. They also conducted trash pulls, finding a stamp in the name of Herbert\\nColeman White, an identity-theft victim whom Sharon did not know. Furthermore,\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 8\\n\\n\\nlaw-enforcement officers found White’s Social Security card and driver’s license, as well as the\\npersonal identifying information of dozens of other people, in Sharon’s house.\\n\\n Although there was no direct evidence proving Sharon’s intent, the jurors heard ample\\ncircumstantial evidence from which they could conclude that she knew that the trusts were\\ncreated for an illicit purpose. “[I]ntent to defraud can be proven by circumstantial evidence and\\nby inferences drawn from the scheme itself.” United States v. Parkes, 668 F.3d 295, 302 (6th\\nCir. 2012) (quoting United States v. Isaiah, 434 F.3d 513, 519–20 (6th Cir. 2006)). “[W]e have\\nnever questioned the sufficiency of circumstantial evidence in support of a criminal conviction,\\neven though proof beyond a reasonable doubt is required.” Desert Palace, Inc. v. Costa, 539\\nU.S. 90, 100 (2003). “And juries are routinely instructed that ‘[t]he law makes no distinction\\nbetween the weight or value to be given to either direct or circumstantial evidence.’” Id.\\n(alteration in original) (quoting 1A Kevin F. O’Malley, Jay E. Grenig & William C. Lee, Federal\\nJury Practice and Instructions: Criminal § 12.04 (5th ed. 2000)). Such an instruction was\\nprovided in the present case.\\n\\nB. The record is not devoid of evidence that Anthony and Sharon knew that their scheme\\n used the names and personal information of real people.\\n\\n Anthony and Sharon next challenge their convictions on counts 38 and 41 of the\\nindictment, which charged them with aggravated identity theft, in violation of 18 U.S.C.\\n§ 1028A(a)(1). They argue that the record is devoid of evidence proving that they knew that\\nthey were using the names and personal identifying information of real people. Because\\nAnthony and Sharon failed to renew their motions for a judgment of acquittal at the close of the\\nevidence, we review their challenge under the manifest-miscarriage-of-justice standard. See\\nWilliams, 612 F.3d at 423.\\n\\n A conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1) requires proof\\nof the following elements: (1) the defendant committed a specified predicate felony; (2) the\\ndefendant knowingly transferred, possessed, or used a means of identification of another person\\nwithout lawful authority; (3) the defendant knew that the means of identification belonged to\\nanother person; and (4) the transfer, possession, or use was during and in relation to the predicate\\nfelony. Sixth Circuit Pattern Jury Instr. 15.04. (“Nonaggravated” identity theft under 18 U.S.C.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 9\\n\\n\\n§ 1028(a)(7) requires proof of nearly identical elements. But § 1028A(c) enumerates the\\npredicate felonies for aggravated identity theft, whereas, under § 1028(a)(7), “any unlawful\\nactivity that constitutes a violation of Federal law, or that constitutes a felony under any\\napplicable State or local law,” is a predicate offense. Section 1028A(a)(1) also provides for a\\nmandatory minimum sentence of two years’ imprisonment, to be served consecutively with\\nsentences imposed for convictions on other counts. 18 U.S.C. § 1028A(a)(1), (b).)\\n\\n The predicate felonies in the present case are mail fraud and conspiracy to commit mail\\nfraud, both of which are enumerated as predicate felonies under § 1028A(c). For the crime\\ncharged in count 38, the defendants used the names and personal identifying information of\\nRhonda Nolen and Holly Sochocki. And for the crime charged in count 41, the defendants used\\nthe names and personal identifying information of Deshawntia Moorer and Kjuan Jones. But\\nAnthony and Sharon argue that there is no evidence in the record proving the third element of\\naggravated identity theft—that they knew that they were using the names and personal\\nidentifying information of real people.\\n\\n The government can use circumstantial evidence to demonstrate that a defendant knew\\nthat he or she was using means of identification that belonged to another person. “Under\\n[18 U.S.C. § 1028A], the government [is] required to prove beyond a reasonable doubt that [the\\ndefendant] knew that the means of identification that he used belonged to another person. The\\ngovernment need not have direct evidence of knowledge; circumstantial evidence can be\\nsufficient.” United States v. Soto, 720 F.3d 51, 55 (1st Cir. 2013) (citation omitted).\\n\\n Taking such circumstantial evidence into account, we conclude that the record is not\\ndevoid of evidence demonstrating that Anthony and Sharon knew that they were using the names\\nand personal identifying information of real people. This evidence includes the two notebooks\\nfound in Sharon’s house that had personal identifying information of identity-theft victims. She\\nalso had some of these victims’ original identification documents. And her trash contained\\ndocuments and other items demonstrating that she and her husband were using these stolen\\nidentities in the fraudulent-tax-refund scheme. In total, law-enforcement officers recovered\\ninformation in Sharon’s house relating to almost 100 different identity-theft victims.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 10\\n\\n\\n As for Anthony, he listed Rhonda Nolen and Brandi Shorter as authorized users of the\\nP.O. Boxes associated with the Rhonda Nolen Trust. He used the driver’s license numbers of\\nNolen and Shorter in order to open these P.O. Boxes. And law-enforcement officers found\\npersonal identifying information for both women in Sharon’s house. The defendants repeatedly\\nused identify-theft victims’ real names throughout the scheme. They put these victims’ names\\non the false IRS 1041 tax-return forms, on the refund checks that they fraudulently caused the\\nIRS to issue, on the P.O. Boxes to which the checks were sent, and on the bank accounts into\\nwhich the checks were deposited.\\n\\n In United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the defendant similarly\\nargued that the government failed to prove that she knew that she was using the identity of a real\\nperson in committing aggravated identify theft. The Eleventh Circuit affirmed Holmes’s\\nconviction, holding that her willingness to subject a stolen Social Security card to government\\nscrutiny established that she knew that the Social Security card belonged to a real person. Id. at\\n1258. And the court also held that Holmes’s success in obtaining a driver’s license and passport\\nin the victim’s name showed that she knew that the identifying information used to obtain those\\ndocuments belonged to another individual. Id.\\n\\n Similarly, in this case, the jury could have found that Anthony and Sharon were confident\\nthat they were using the names and personal identifying information of real people because they\\nsubjected the names used in their scheme to scrutiny by the IRS, the United States Postal\\nService, and the banks. Furthermore, utilizing the analysis in Holmes, the defendants’ success in\\nusing the stolen personal identifying information to create trusts, rent P.O. Boxes, and open bank\\naccounts shows that they knew that the personal identifying information belonged to real people.\\n\\n The defendants, moreover, did not use personal identifying information from only\\nidentity-theft victims. They also used the names and personal identifying information of their\\nfriends and family in committing their fraudulent scheme. Anthony recruited his friends Darry\\nPoole, Aaron Maddox, and Derrick McCoy, as well as Anthony’s longtime girlfriend Sydona\\nRobinson, for their personal identifying information. Christopher also recruited others, including\\nhis friends Brandon Bradley and Randi Hardy, as well as his fiancée Deyana Wagner. As the\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 11\\n\\n\\ngovernment argues, this demonstrates that the defendants knew that they had to use the names\\nand personal identifying information of real people in order for their scheme to succeed.\\n\\n In sum, the government put forth circumstantial evidence from which the jury could have\\nconcluded beyond a reasonable doubt that Anthony and Sharon knew that they were using the\\nnames and personal identifying information of real people. Nor have the defendants rebutted the\\ngovernment’s evidence in any meaningful way. They do not dispute that the names and personal\\nidentifying information that they used did, in fact, belong to real people. And significantly, they\\noffer no explanation as to how they could have obtained such information without knowing that\\nit belonged to other individuals. We therefore conclude that the record is not devoid of evidence\\nshowing that Anthony and Sharon knew that they were using the names and personal identifying\\ninformation of real people.\\n\\nC. Anthony’s and Christopher’s state-bar grievances against their attorneys did not create\\n conflicts of interest that prevented the attorneys from providing effective assistance of\\n counsel.\\n\\n We now move on to Anthony’s and Christopher’s argument that their attorneys did not\\nprovide effective assistance of counsel because the Gandy brothers each filed state-bar\\ngrievances against them. To start, we provide the context for these state-bar grievances.\\n\\n The trial in this case did not begin until roughly a year and a half after the indictment was\\nissued. Each continuance had been agreed upon by counsel, and the parties filed appropriate\\nstipulations under the Speedy Trial Act. About a month before trial, the defendants filed a pro se\\ndocument titled “Objections to Stipulations to Continue Trial,” in which they complained that\\nthey had not personally agreed to the continuances. This document was purportedly signed by\\nAnthony, Christopher, Sharon, Durand Micheau, Derrick McCoy, and Shanel Seay.\\n\\n The district court overruled the objections on the ground that the defendants were not\\npermitted to proceed pro se because they were represented by counsel. It also noted that the\\ncontinuances had been agreed to by the parties. Anthony and Christopher then each tried to fire\\ntheir respective attorneys and sought the appointment of new attorneys. The court conducted a\\nhearing on the matter and ultimately concluded that there was no basis for the substitution of\\ncounsel.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 12\\n\\n\\n Then, the week before trial, Anthony and Christopher filed grievances against their\\nattorneys with the State Bar of Michigan. In these filings, the Gandy brothers each claimed that\\nthey required new counsel in order to preserve their objections under the Speedy Trial Act.\\nAnthony and Christopher followed up by filing motions for the substitution of counsel the day\\nbefore the trial was set to begin, claiming that they were being denied the effective assistance of\\ncounsel due their attorneys’ failure to raise their speedy-trial objections. At the same time,\\ncounsel for Anthony and Christopher each moved to withdraw, claiming that the state-bar\\ngrievances had created a conflict of interest between the attorneys and their clients.\\n\\n The district court conducted another hearing on the matter. Christopher testified during\\nthe hearing that he “asked [his attorney] to file [the motion to dismiss based on the speedy-trial\\nobjection] and [the attorney] didn’t file it, and that was [Christopher’s] issue with [his attorney].”\\nAnthony and Christopher both testified that their only complaint with their respective attorneys\\nwas that the attorneys did not further litigate the speedy-trial objections, which the district court\\nhad already overruled. In fact, Anthony testified that his attorney was otherwise “an excellent\\nattorney.”\\n\\n The district court found that there was no impairment in the defendants’ ability to\\neffectively work with their attorneys. Furthermore, the court repeated its conclusion that the\\nspeedy-trial objections had no merit. The court also noted that the state-bar grievances were\\n“100 percent frivolous” and contrived by the defendants in order to avoid trial. In addition, the\\ncourt concluded that counsel’s statements that their feelings had been hurt and that their pride\\nhad been wounded were nothing more than “theatrics.” The court ultimately determined that\\ncounsel had continued to work cooperatively and communicate extensively with their clients\\neven while these motions were pending. It therefore denied Anthony’s and Christopher’s\\nmotions to substitute new counsel and denied the attorneys’ motions to withdraw.\\n\\n Anthony and Christopher now argue that the state-bar grievances created a conflict of\\ninterest that caused them to be denied the effective assistance of counsel. The Supreme Court in\\nStrickland v. Washington, 466 U.S. 668 (1984), announced the standard for criminal defendants\\nclaiming ineffective assistance of counsel. “First, the defendant must show that counsel’s\\nperformance was deficient.” Id. at 687. Counsel’s performance is deficient when it “[falls]\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 13\\n\\n\\nbelow an objective standard of reasonableness.” Id. at 688. “Second, the defendant must show\\nthat the deficient performance prejudiced the defense.” Id. at 687.\\n\\n We use a modified version of the Strickland framework when the\\nineffective-assistance-of-counsel claim is based on an alleged conflict of interest. United States\\nv. Kilpatrick, 798 F.3d 365, 374–75 (6th Cir. 2015). Under this modified standard, a defendant\\nmust point to specific instances in the record and make a factual showing that the attorney and\\nthe defendant have inconsistent interests. Id. Proving a conflict of interest requires the\\ndefendant to show that his attorney had competing obligations and chose to favor one interest\\nover another, to the detriment of the representation of the defendant. Mickens v. Taylor,\\n535 U.S. 162, 171 (2002). More specifically, the defendant must show that his attorney’s\\nperformance was compromised as a result of a competing obligation. Id.\\n\\n Anthony and Christopher have failed to show that their attorneys had a conflict of interest\\nbecause the state-bar grievances did not create conflicting obligations. The district court found\\nthat the grievances were frivolous and that the defendants’ speedy-trial objections lacked merit.\\nClaims by the attorneys that their feelings were hurt are not enough to create a conflict of\\ninterest, and the court dismissed as hyperbole the attorneys’ assertions that they could not exert\\nthe “passion” necessary to represent their clients. The court also found that there was no real\\nbreakdown in the attorney-client relationship that prevented the attorneys from providing\\neffective assistance. Anthony and Christopher were both able to communicate with their\\nattorneys to assist them in preparing for trial.\\n\\n Furthermore, if the filing of state-bar grievances was in itself sufficient to create a\\nconflict of interest that would prevent attorneys from providing effective representation, then\\ncriminal defendants could habitually abuse this rule. Any defendant in a criminal case would be\\nable to manufacture a frivolous argument against his or her attorney, file a state-bar grievance,\\nand have the district court substitute new counsel. See United States v. Burns, 990 F.2d 1426,\\n1438 (4th Cir. 1993) (noting that a ruling for a defendant claiming ineffective assistance of\\ncounsel as a result of a meritless state-bar grievance “would invite criminal defendants anxious\\nto rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on\\nthe eve of trial”).\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 14\\n\\n\\n And even if the grievances in question here had merit, they did not create a conflict of\\ninterest because the grievances did not establish any competing obligations for the attorneys. If\\nanything, they aligned the attorneys’ interests with those of their clients and incentivized the\\nattorneys to work even harder. The attorneys must have recognized that if their clients were\\nconvicted at trial, the alleged failure to pursue the speedy-trial objections would be highlighted.\\nThey must have similarly recognized that an acquittal for their clients would render the\\ngrievances moot. See, e.g., United States v. Leggett, 81 F.3d 220, 227 (D.C. Cir. 1996) (“[A]n\\nattorney fearing an ineffective assistance of counsel claim has an incentive to do his best, not the\\ncontrary.”).\\n\\n Because we conclude that Anthony’s and Christopher’s state-bar grievances against their\\nattorneys did not create a conflict of interest, we need not address whether the alleged conflict\\ncompromised the attorneys’ representation of their clients. But, in short, we note that Anthony\\nand Christopher have failed to show that any of the alleged deficiencies by their attorneys were\\ncaused by what they deem to be a conflict of interest.\\n\\nD. There was no plain error with respect to duplicity in the indictment or the lack of a\\n specific unanimity jury instruction regarding the aggravated-identity-theft charges.\\n\\n Anthony’s next argument, joined by Sharon, challenges the aggravated-identity-theft\\ncounts in the indictment on duplicity grounds and challenges the aggravated-identity-theft jury\\ninstructions on unanimity grounds. First, Anthony argues that counts 38 and 41 of the\\nindictment are duplicitous because the government charged several discrete violations in each\\ncount. “An indictment is duplicitous if it sets forth separate and distinct crimes in one count.”\\nUnited States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) (quoting United States v. Davis, 306\\nF.3d 398, 415 (6th Cir. 2002)). Second, he argues that the district court failed to give a\\nunanimity jury instruction regarding the aggravated-identity-theft charges. These arguments\\nraise the same substantive issue, so we will address them together. See id. (“[T]he primary\\nconcern [with a duplicitous indictment] is that a defendant may be deprived of his right to a\\nunanimous jury verdict.”).\\n\\n Anthony and Sharon did not raise the duplicity challenge to the indictment before the\\ndistrict court. They also did not request a specific jury instruction on unanimity for the\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 15\\n\\n\\naggravated-identity-theft charges. We therefore review these arguments under the plain-error\\nstandard. Id. at 445 (“[W]hen a defendant raises a challenge to a duplicitous indictment for the\\nfirst time on appeal . . . [and w]here the defendant does not object to the district court’s\\ninstructions to the jury, review is limited to plain error.”). Under the plain-error standard, “we\\nmust consider whether there was plain error that affects substantial rights and that, in our\\ndiscretionary view, seriously affects the fundamental fairness, integrity, or public reputation of\\njudicial proceedings.” United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (citing\\nJohnson v. United States, 520 U.S. 461, 466 (1997)).\\n\\n Anthony argues that the indictment is duplicitous regarding counts 38 and 41, and that\\nthe jury instructions failed to cure this defect. Specifically, he contends that each of these counts\\nalleged more than one predicate offense and more than one victim. Count 38 refers to the\\nvictims as Individuals C and D—later identified as Rhonda Nolen and Holly Sochocki. And\\ncount 41 refers to the victims as Individuals H and I—later identified as Deshawntia Moorer and\\nKjuan Jones. Anthony relies primarily on United States v. Duncan, 850 F.2d 1104 (6th Cir.\\n1988), in support of his argument that the verdict must be unanimous regarding the predicate\\noffense and the victim.\\n\\n This court held in Duncan that a jury verdict must be unanimous as to which false\\nstatement violated 26 U.S.C. §§ 7206(1) and 7602(2), statutes that prohibit the making and\\npreparing of a tax return containing a materially false statement. Id. at 1113. We also held that\\nthe distinct court was required to use a specific unanimity jury instruction when faced with the\\ngenuine risk of a nonunanimous verdict. Id. at 1113–14. The problem with Duncan, however, is\\nthat this court in United States v. Schmeltz, 667 F.3d 685, 688 (6th Cir. 2011), noted that Duncan\\nhad been abrogated by Schad v. Arizona, 501 U.S. 624 (1991). In Schad, the Supreme Court\\nrecognized “a long-established rule of the criminal law that an indictment need not specify which\\novert act, among several named, was the means by which a crime was committed.” Id. at 631.\\n\\n The Court in Schad further noted as follows:\\n\\n We have never suggested that in returning general verdicts in such cases the\\n jurors should be required to agree upon a single means of commission, any more\\n than the indictments were required to specify one alone. In these cases, as in\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 16\\n\\n\\n litigation generally, “different jurors may be persuaded by different pieces of\\n evidence, even when they agree upon the bottom line. Plainly there is no general\\n requirement that the jury reach agreement on the preliminary factual issues which\\n underlie the verdict.\\n\\nId. at 631–32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,\\nconcurring) (footnotes omitted)). Because Duncan has been abrogated, Anthony has not pointed\\nto any binding precedent that establishes that each victim of identity theft must be the subject of\\na separate charge or that a jury verdict must be unanimous regarding the victim of identity theft.\\n\\n Furthermore, based on the evidence presented at trial, no reasonable juror could have\\nfound that Anthony and Sharon used the name and personal information of Rhonda Nolen but\\nnot of Holly Sochocki, or vice versa, because the two names were used together on the same\\ninstruments. The Form 1041 submitted for the Rhonda Nolen Trust, for instance, identified\\nHolly Sochocki as the trustee. And the refund check listed both Nolen and Sochocki.\\n\\n The same is true for count 41 regarding Deshawntia Moorer and Kjuan Jones. For the\\nDeshawntia Moorer Trust, the Form 1041 listed Deshawntia Moorer and Kjuan Jones on\\nsuccessive lines. And the refund check also listed both names. Because no reasonable juror\\ncould have found that one name was used but not the other, there was no risk of a nonunanimous\\nverdict regarding the multiple victims named in each count. See United States v. Kakos, 483\\nF.3d 441, 446 (6th Cir. 2007) (observing that, where the defendant was charged in a single count\\nwith knowingly receiving both a stolen trailer and the meat contained in the trailer, his argument\\nthat some jurors might have concluded that he knew only that the trailer was stolen, whereas\\nothers might have concluded that he knew only that the meat was stolen, was inconsistent with\\nthe evidence). Accordingly, there was no plain error on duplicity grounds regarding the\\nindictment naming multiple victims in counts 38 and 41, and the district court was not required\\nto issue a specific unanimity instruction on this issue.\\n\\n We will now address Anthony’s argument that the indictment was duplicitous because\\ncounts 38 and 41 listed multiple predicate felonies. Each count alleged that the crimes of\\naggravated identity theft were committed “during and in relation to the offenses of conspiracy to\\ncommit mail fraud and mail fraud.”\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 17\\n\\n\\n Even assuming that the district court erred in not providing a specific unanimity\\ninstruction for the aggravated-identity-theft counts regarding the predicate felonies, there was no\\nissue with respect to unanimity. The jury unanimously found both Anthony and Sharon guilty of\\nconspiracy to commit mail fraud, which was one of the predicate felonies for aggravated identity\\ntheft. Anthony was acquitted of the predicate substantive-mail-fraud offenses in counts 10, 14,\\n28, and 31. So we know from the verdict that the jury unanimously believed that the only\\npredicate offense that Anthony was guilty of is conspiracy to commit mail fraud.\\n\\n True enough, Sharon was convicted of the substantive-mail-fraud offenses in counts 10\\nand 28 for the Nolen Trust. But that does not present an issue regarding whether the jury’s\\nverdict was unanimous for the aggravated-identity-theft charges in counts 38 and 41 because the\\njury unanimously believed that Sharon committed the predicate offenses of both mail fraud and\\nconspiracy to commit mail fraud. We therefore have no concern that some jurors found Sharon\\nguilty of only the predicate offense of mail fraud, whereas others found her guilty of only the\\npredicate conspiracy offense. The jury found her guilty of both offenses. In sum, Anthony and\\nSharon were not “deprived of [their] right to a unanimous jury verdict.” See Kakos, 483 F.3d at\\n443.\\n\\nE. The district court did not commit plain error regarding its aiding-and-abetting jury\\n instruction for aggravated identity theft by not specifying that a defendant must\\n willfully cause another person to commit every element of aggravated identity theft.\\n\\n This brings us to the first of Anthony’s arguments, joined by Sharon, challenging the\\ndistrict court’s jury instruction regarding aiding-and-abetting liability. Anthony contends that the\\ncourt erred in its jury instruction because it did not specify that a defendant must have knowledge\\nthat another person would use a real identity-theft victim’s personal information.\\n\\n Specifically, Anthony argues that, under Rosemond v. United States, 572 U.S. 65 (2014),\\nthe district court must instruct the jury that aiding-and-abetting liability applies only if the\\ndefendant takes an affirmative act in furtherance of the underlying offense with the intent to\\nfacilitate that offense’s commission. See id. at 71, 76. The defendant, Anthony contends, must\\nhave knowledge that another person will commit each element of the crime in order to be found\\nguilty. See id.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 18\\n\\n\\n Rosemond concerned aiding-and-abetting liability under 18 U.S.C. § 924(c), which\\ncriminalizes using a firearm “during and in relation to” a drug-trafficking crime or a crime of\\nviolence. The Supreme Court held that “intent must go to the specific and entire crime charged,”\\ni.e., “the full scope (predicate crime plus gun use) of § 924(c).” Id. at 76. Anthony argues that\\nthe same reasoning applies in the present case because aggravated identity theft under 18 U.S.C.\\n§ 1028A(a)(1) is also a compound crime that requires the commission of a criminal act—\\ntransferring, possessing, or using a means of identification of another person without lawful\\nauthority—“during and in relation to” a predicate offense. Applying the principles articulated in\\nRosemond to the present case, Anthony argues that the jury instructions improperly failed to\\nspecify that he could be found guilty of aiding and abetting only if he knew that another person\\nwould use a real identity-theft victim’s personal information.\\n\\n If an objection to a jury instruction was not preserved before the district court, we review\\nthe instruction under the plain-error standard, “considering whether ‘the instructions, when taken\\nas a whole, were so clearly wrong as to produce a grave miscarriage of justice.’” United States\\nv. Wood, 364 F.3d 704, 708 (6th Cir. 2004) (quoting United States v. Sanderson, 966 F.2d 184,\\n187 (6th Cir. 1992)). Anthony argues that his objection was preserved, but before the district\\ncourt he challenged only the sufficiency of the evidence to support an aiding-and-abetting\\ninstruction. That argument is raised again on appeal. See below, Part II.F. But none of the\\ndefendants argued before the district court that the aiding-and-abetting instruction itself was\\nlegally incorrect. Accordingly, we review the district court’s instruction under the plain-error\\nstandard.\\n\\n The district court instructed the jury on aiding-and-abetting liability for aggravated\\nidentity theft as follows:\\n\\n First, that the defendant caused any person to commit the act of knowingly using\\n without lawful authority a means of identification of another individual;\\n Second, if the defendant had committed the act, it would have been the crime of\\n Aggravated Identity Theft;\\n Third, that the defendant willfully caused the act to be done.\\n Proof that the defendant may have known about the crime, even if he or she was\\n there when it was committed, is not enough for you to find him or her guilty. You\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 19\\n\\n\\n may consider this in deciding whether the government has proved that he or she\\n caused the act to be done, but without more it is not enough. What the\\n government must prove is that the defendant willfully did something to cause the\\n act to be committed.\\n\\n The second element negates Anthony’s objection based on Rosemond because the district\\ncourt had already instructed the jury on the crime of aggravated identity theft using the proper\\nelements. Among those elements was the requirement “that the defendant knew the means of\\nidentification belonged to another person.” Accordingly, the jury instructions as a whole were\\nsufficiently clear that, in order for the jury to find Anthony or Sharon guilty of aggravated\\nidentity theft under an aiding-and-abetting theory of liability, it would have to find that he or she\\nwillfully caused another person to use someone else’s identification without lawful authority,\\nknowing that the identification used belonged to someone else. We thus find no plain error in\\nthe aiding-and-abetting jury instruction.\\n\\nF. Sufficient evidence justified the district court’s aiding-and-abetting jury instruction for\\n aggravated identity theft.\\n\\n This leads us to Anthony’s next argument, also joined by Sharon, challenging the\\nsufficiency of the evidence to support the district court’s aiding-and-abetting jury instruction.\\nThe government acknowledges that this objection was preserved, so we review the court’s\\ndecision to include the instruction under the abuse-of-discretion standard. United States v.\\nEaton, 784 F.3d 298, 306–07 (6th Cir. 2015). “Under this standard, we ‘review the instructions\\nas a whole, in order to determine whether they adequately informed the jury of the relevant\\nconsiderations and provided a basis in law for aiding the jury in reaching its decision.’” Id.\\n(quoting United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008)).\\n\\n Anthony argues that he had no role in the tax returns, the EIN numbers, or the trust\\ndocuments regarding the Rhonda Nolen and Deshawntia Moorer Trusts. But the evidence shows\\notherwise. For the Rhonda Nolen Trust, for instance, Anthony rented a P.O. Box in November\\n2012 and listed Nolen as an authorized recipient. That same day, somebody prepared a\\nfraudulent tax return for the trust using Nolen’s forged signature and sent the return to the IRS.\\nThe fraudulent return requested that a refund check be sent to the P.O. Box opened by Anthony.\\nAnthony went to the bank with Christopher when Christopher set up the bank account for the\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 20\\n\\n\\nNolen Trust. Then, when the check arrived in the P.O. Box rented by Anthony, Anthony and\\nChristopher took the check to the bank to deposit it into the account that they had opened.\\n\\n Anthony points out that the surveillance photo from the bank depicts him departing\\ncarrying a sheaf of papers, which he claims was a newspaper. But when somebody enters a bank\\nempty handed, opens a trust account, then leaves carrying a sheaf of papers, the most logical\\ninference is that these papers relate to the new account. A reasonable jury could conclude from\\nthese facts that Anthony either prepared the false return, forged Nolen’s signature, and mailed\\nthe return to the IRS himself, or that he caused another person to commit these acts. In sum, the\\ndistrict court did not abuse its discretion in deciding to use an aiding-and-abetting instruction\\nwith regard to count 38 because Anthony would be liable whether he prepared the false tax\\nreturn himself or whether he caused another to do so.\\n\\n Evidence in the record also supports the aiding-and-abetting instruction regarding count\\n41, the aggravated-identity-theft count relating to the Deshawntia Moorer Trust. As with the\\nRhonda Nolen Trust, Anthony procured the P.O. Box to which the refund check for the Moorer\\nTrust was sent. He recruited Poole to help with this task. The Moorer Trust designated Seay as\\nthe trustee, and she testified that Anthony and Christopher were responsible for her involvement\\nin the criminal scheme. Seay was accompanied by Christopher and Sharon when she took the\\ncheck bearing Moorer’s and Kjuan Jones’s names to the bank to deposit it. And she testified that\\nAnthony demanded that she make withdrawals from the account, with the money going to him.\\nA reasonable juror could find that one of the defendants caused somebody else to create and mail\\nthe fraudulent IRS return for the Moorer Trust. The district court therefore did not abuse its\\ndiscretion in instructing the jury on aiding-and-abetting liability under 18 U.S.C. § 2(b) for the\\ncount 41 aggravated-identity-theft charge.\\n\\n III. CONCLUSION\\n\\n For all of the reasons set forth above, we AFFIRM all aspects of the district court’s\\njudgment.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4404700/\", \"author_raw\": \"RONALD LEE GILMAN, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"CLAY"},"judge2":{"kind":"string","value":"GILMAN"},"judge3":{"kind":"string","value":"KETHLEDGE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627447/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Christopher A. GANDY (17-2020); Anthony R. Gandy (18-1106); Sharon Gandy-Micheau (18-1137), Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0118p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n │\n v. > Nos. 17-2020/18-1106/1137\n │\n │\n CHRISTOPHER A. GANDY (17-2020); ANTHONY R. │\n GANDY (18-1106); SHARON GANDY-MICHEAU │\n (18-1137), │\n Defendants-Appellants. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Ann Arbor.\n No. 5:15-cr-20338—Judith E. Levy, District Judge.\n\n Argued: May 1, 2019\n\n Decided and Filed: June 7, 2019\n\n Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Gary W. Crim, Dayton, Ohio, for Appellant in 17-2020. Deborah A. Solove,\nWesterville, Ohio, for Appellant in 18-1106. Daniel R. Hurley, UNITED STATES\nATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Gary W. Crim, Dayton,\nOhio, for Appellant in 17-2020. Deborah A. Solove, Westerville, Ohio, for Appellant in 18-\n1106. Andrew P. Avellano, Columbus, Ohio, for Appellant in 18-1137. Daniel R. Hurley,\nUNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n RONALD LEE GILMAN, Circuit Judge. Anthony Gandy, his brother Christopher\nGandy, their sister Sharon Gandy-Micheau, and Sharon’s husband Durand Micheau sought tax\nrefunds for 21 separate fictitious trusts that they created. The defendants’ scheme was to submit\nfictitious tax returns to the Internal Revenue Service (IRS) for the purpose of claiming refunds\nfor nonexistent excess withholding. They were successful in obtaining refund checks based upon\nmany of these returns, receiving over $360,000 in ill-gotten money. The defendants were\nconvicted of several crimes, including mail fraud, conspiracy to commit mail fraud, aggravated\nidentity theft, conspiracy to commit identity theft, and illegal monetary transactions.\n\n Anthony, Christopher, and Sharon now appeal, arguing that (1) insufficient evidence\nsupports Sharon’s convictions, (2) insufficient evidence supports the finding that Anthony and\nSharon knew that they were using the names and personal identifying information of real people,\n(3) Anthony and Christopher were deprived of the effective assistance of counsel because their\nstate-bar grievances against their attorneys created conflicts of interest, (4) the indictment was\nduplicitous regarding the aggravated-identify-theft charges and the district court failed to cure\nthis defect by issuing a specific unanimity jury instruction, (5) the court’s aiding-and-abetting\njury instruction was legally incorrect, and (6) insufficient evidence supports the court’s\naiding-and-abetting jury instruction. For the reasons set forth below, we AFFIRM all aspects of\nthe district court’s judgment.\n\n I. BACKGROUND\n\nA. Factual background\n\n The defendants created trust documents using their own names, their friends’ names, or\nthe names of identity-theft victims as trustees, successor trustees, and beneficiaries. They then\nobtained an Employer Identification Number (EIN) from the IRS for each trust. Using these\nEINs, they submitted fictitious IRS Form 1041s, the form used for income-tax returns for estates\nand trusts. These tax returns falsely claimed that substantially more income had been withheld\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 3\n\n\nfrom each trust than was due in tax liability, and that the trust was accordingly due a refund in\nthe amount of the excess withholding.\n\n On at least 14 occasions, the IRS relied on the veracity of the signed returns, which were\nsubmitted under penalty of perjury, and issued refund checks to the fictitious trusts. The checks\nwere generally mailed to Post Office (P.O.) Boxes that the defendants had obtained. Once they\nreceived the checks, the defendants deposited the funds into bank accounts that they had created\nfor the trusts, or at supermarkets or check-cashing businesses in Detroit that charged high fees.\nAll told, the defendants requested $1,425,548 in refunds, the IRS issued refund checks totaling\n$939,103.05, and the defendants netted $360,469.05 from those checks. The defendants were\nnot able to obtain the full $939.103.05 because several of the banks closed the trust accounts\nbefore the defendants were able to withdraw all the funds. In addition, the IRS seized two\nchecks sent to a P.O. Box at a UPS store because the owner of the store alerted the authorities\nabout the suspicious checks.\n\n The defendants used their own identities in the early days of the scheme. In June 2012,\nfor example, a Form 1041 was submitted to the IRS on behalf of the Sharon Trust Fund.\nSharon’s sister Pamela Gandy signed the return and sought a refund of $33,856 for excess\nwithholding. Sharon was listed as the trustee of the fund and the return was mailed by Anthony.\nFurthermore, the return address was listed as a P.O. Box that was obtained by Sharon using her\nreal driver’s license. Sharon also used her real identification to cash the refund check at a\nsupermarket in Detroit.\n\n The defendants then recruited family, friends, and acquaintances to lend their personal\ninformation for use in the scheme. For instance, Christopher and his fiancée, Deyana Wagner,\nsubmitted a return on behalf of a fictitious C&D Trust. They had the check sent to a P.O. Box\nrented by Anthony, and then cashed the $35,051.80 check at a check-cashing store in Detroit.\n\n Similarly, Anthony recruited his longtime girlfriend, Sydona Robinson, to submit a\nfraudulent return. After Anthony established a trust in Robinson’s name using her real personal\nidentifying information, he submitted a Form 1041 that claimed a refund of $66,629. Anthony\nnamed his friend Derrick McCoy as a trustee and used a P.O. Box that he controlled as the return\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 4\n\n\naddress. McCoy and Anthony deposited the refund check, which Robinson claimed that she\nnever saw, into an account at Fifth Third Bank.\n\n Anthony also had McCoy set up a fictitious trust. A Form 1041, submitted by Anthony,\nclaimed that McCoy’s trust was due a refund of $38,986. The refund check was mailed to\nanother P.O. Box controlled by Anthony. McCoy and Anthony cashed the check in Detroit,\npaying a $1,500 fee. According to McCoy, Anthony kept almost all the money for himself.\n\n Anthony similarly brought his friend Darry Poole into the scheme, falsely telling Poole\nthat he would help Poole with his taxes. Instead, Anthony used Poole’s personal information to\ncreate the Darry Poole Trust, and he then submitted a Form 1041 on behalf of the trust. Anthony\nlisted himself as the trustee and claimed that the trust was due a $34,888 refund for excess\nwithholding. The IRS sent a refund check for that amount to a P.O. Box controlled by Anthony,\nwho cashed the check without giving any of the funds to Poole.\n\n Anthony also induced his friend Aaron Maddox to participate in the scheme. Maddox\ntestified that Anthony had him rent a P.O. Box, which was listed as the return address for several\ntrusts. Anthony prepared the paperwork to set up a trust in Maddox’s name and claimed a refund\nof $58,386 for the trust, but no funds were ever sent by the IRS. Maddox’s name was used for\nother fictitious trusts as well, including the Capital One Investment Trust and the Aspen\nInvestment Trust.\n\n Christopher also recruited friends into the scheme. For instance, he falsely told his friend\nBrandon Bradley that he could help Bradley get government money to repair houses in Detroit.\nBradley gave Christopher his personal information, and Christopher created the Brandon Bradley\nTrust, seeking a refund of $34,231. They received the refund check and cashed it at a local\ncheck-cashing store, paying a fee of between $4,000 and $5,000. Bradley kept $5,000 for\nhimself and Christopher kept the rest of the money.\n\n Christopher and Anthony jointly recruited Shanel Seay, who had been friends with both\nbrothers for some time, into the fraudulent scheme. The brothers set up a trust in Seay’s name\nand submitted a return seeking a refund of $36,550. No refund was issued for this trust, but the\nbrothers found other ways for Seay to help with the scheme. For example, they named Seay as\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 5\n\n\nthe trustee for a fictitious Deshawntia Moorer Trust. The Gandy brothers successfully obtained a\nrefund check for this trust, and Seay opened a bank account for the trust and deposited the refund\ncheck into the bank account. Christopher gave Seay the documents needed to open the bank\naccount and deposit the check, and Christopher and Sharon both accompanied Seay to the bank.\nShortly thereafter, Anthony and Christopher directed Seay to withdraw the money from the\ntrust’s bank account in a series of withdrawals.\n\n The defendants also used Seay to help with another fraudulent trust. Christopher falsely\ntold his friend Randi Hardy that he could help her get money to promote her music career. He\nthen used Hardy’s personal information to set up a fictitious trust and filed a return for the trust,\nseeking a refund of $83,597. Hardy denied signing the return, but she did admit to helping cash\nthe refund check. The defendants had Seay accompany Hardy and Hardy’s cousin, who was\nlisted as the trustee, to the bank to deposit the refund check. Seay opened a bank account for the\ntrust and deposited the refund check into the account, but she testified that the Gandys kept\nalmost all the funds for themselves.\n\n In order to run the fraudulent scheme, the defendants had to keep track of the\ndocumentation for 21 separate trusts, obtain and track EIN numbers for each trust, complete and\nfile a Form 1041 seeking a refund for each trust, obtain P.O. Boxes to use as the return addresses\nfor the refund checks, open bank trust accounts, and deposit the refund checks. Sharon rented at\nleast three P.O. Boxes in her name. Anthony rented several P.O. Boxes himself and controlled\nseveral others that he had friends rent in their own names.\n\n Sharon kept digital and written records for many of the fictitious trusts. During a search\nof her house, law-enforcement officers found two notebooks containing names, addresses, and\nidentifying information for several identity-theft victims. They also found additional information\nregarding dozens of other stolen identities. Moreover, the law-enforcement officers conducted\ntrash pulls at Sharon’s house to confirm that the defendants were running a tax-fraud criminal\nenterprise. Through these thrash pulls, they discovered that the defendants had ordered a “For\nDeposit Only” stamp for one of their fraudulent trust accounts. The stamp purported to represent\nthe signature of Herbert Coleman White, whose house in Detroit was robbed in 2012.\nLaw-enforcement officers also found White’s driver’s license, Social Security card, and other\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 6\n\n\npersonal identifying information during their search of Sharon’s house. The defendants used\nWhite’s name and personal information in connection with several of the fictitious trusts that\nthey created in order to obtain fraudulent tax-refund checks.\n\n A number of the names and personal information used during the scheme in fact\nbelonged to people who had their wallets or purses stolen in the Detroit area. The identity-theft\nvictims whose information the defendants used include Deshawntia Moorer, Kjuan Jones, Brandi\nShorter, Alania Curry, Holly Sochocki, Rhonda Nolen, Danisha Smith, and Lia Turla. Trusts in\nthe names of Moorer and Nolen were established by the defendants, and the defendants\nsuccessfully obtained fraudulent tax refunds for these trusts. The defendants also set up trusts in\nCurry’s and Shorter’s names and filed fraudulent tax returns seeking refunds. And Jones and\nSochocki were identified as trustees of certain trusts. None of these identity-theft victims knew\nthat their names and personal identifying information were being used in the defendants’\nfraudulent scheme.\n\nB. Procedural background\n\n Anthony, Christopher, and Sharon were indicted on multiple counts arising out of their\nscheme to obtain fraudulent tax refunds on behalf of these fictitious trusts. Durand Micheau\n(Sharon’s husband), Seay, and McCoy were also indicted. Seay reached an agreement to\ncooperate with the government and testified during the trial. Micheau’s case was severed. The\nGandy siblings and McCoy were tried together before a jury. McCoy was acquitted, but\nAnthony, Christopher, and Sharon were convicted on several of the counts charged in the\nindictment. Anthony was sentenced to 80 months’ imprisonment and Christopher and Sharon\nwere each sentenced to 72 months’ imprisonment. The district court explained that Anthony’s\nterm of imprisonment was longer because of his criminal history. All three defendants and\nDurand Micheau were also ordered to pay restitution, jointly and severally, in the amount of\n$360,469.05—the amount of ill-gotten gains they collectively received.\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 7\n\n\n II. ANALYSIS\n\nA. Sufficient evidence in the record supports Sharon’s convictions.\n\n We begin with Sharon’s argument that there is insufficient evidence in the record to\nsupport the verdict against her. At trial, Sharon’s counsel did not renew her motion for a\njudgment of acquittal at the close of the evidence. See Fed. R. Crim. P. 29. We therefore must\ndetermine “only whether the trial resulted in a ‘manifest miscarriage of justice.’” See United\nStates v. Williams, 612 F.3d 417, 423 (6th Cir. 2010) (quoting United States v. Khalil, 279 F.3d\n358, 368 (6th Cir. 2002)). A manifest miscarriage of justice means that the record is “‘devoid’ of\nevidence of guilt.” Id. (quoting United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998)).\n\n Sharon was convicted of mail fraud, conspiracy to commit mail fraud, aggravated identity\ntheft, conspiracy to commit identity theft, and illegal monetary transactions. She argues\ngenerally that none of the convictions can stand because the record is devoid of evidence that she\nhad the intent to defraud anyone. More specifically, she argues that there was no evidence\ndemonstrating that she knew that the trusts she helped set up would be used for illicit purposes.\n\n We are not persuaded that the record is devoid of evidence of Sharon’s guilt. Among\nother things, she personally cashed a check from the IRS for $33,856 at a supermarket in Detroit.\nThe check was made out to the Sharon Trust Fund, and she knew the nine-digit EIN assigned to\nthe trust by the IRS. This refund check was issued because of a tax return filed by the trust and\nsigned by Sharon’s sister that falsely claimed that the trust had $33,856 in earnings withheld\ndespite the fact that the trust had no taxable income. And Sharon did more than just cash refund\nchecks. She rented P.O. Boxes used to obtain some of the refund checks and went to the bank to\nassist in setting up fraudulent trust accounts on multiple occasions.\n\n In addition, the evidence found in Sharon’s house constitutes proof regarding her\nknowledge that the refund checks that she cashed were fraudulently obtained. Law-enforcement\nofficers found her notebooks containing information for several of the fictitious trusts and\nfraudulent returns. They also conducted trash pulls, finding a stamp in the name of Herbert\nColeman White, an identity-theft victim whom Sharon did not know. Furthermore,\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 8\n\n\nlaw-enforcement officers found White’s Social Security card and driver’s license, as well as the\npersonal identifying information of dozens of other people, in Sharon’s house.\n\n Although there was no direct evidence proving Sharon’s intent, the jurors heard ample\ncircumstantial evidence from which they could conclude that she knew that the trusts were\ncreated for an illicit purpose. “[I]ntent to defraud can be proven by circumstantial evidence and\nby inferences drawn from the scheme itself.” United States v. Parkes, 668 F.3d 295, 302 (6th\nCir. 2012) (quoting United States v. Isaiah, 434 F.3d 513, 519–20 (6th Cir. 2006)). “[W]e have\nnever questioned the sufficiency of circumstantial evidence in support of a criminal conviction,\neven though proof beyond a reasonable doubt is required.” Desert Palace, Inc. v. Costa, 539\nU.S. 90, 100 (2003). “And juries are routinely instructed that ‘[t]he law makes no distinction\nbetween the weight or value to be given to either direct or circumstantial evidence.’” Id.\n(alteration in original) (quoting 1A Kevin F. O’Malley, Jay E. Grenig & William C. Lee, Federal\nJury Practice and Instructions: Criminal § 12.04 (5th ed. 2000)). Such an instruction was\nprovided in the present case.\n\nB. The record is not devoid of evidence that Anthony and Sharon knew that their scheme\n used the names and personal information of real people.\n\n Anthony and Sharon next challenge their convictions on counts 38 and 41 of the\nindictment, which charged them with aggravated identity theft, in violation of 18 U.S.C.\n§ 1028A(a)(1). They argue that the record is devoid of evidence proving that they knew that\nthey were using the names and personal identifying information of real people. Because\nAnthony and Sharon failed to renew their motions for a judgment of acquittal at the close of the\nevidence, we review their challenge under the manifest-miscarriage-of-justice standard. See\nWilliams, 612 F.3d at 423.\n\n A conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1) requires proof\nof the following elements: (1) the defendant committed a specified predicate felony; (2) the\ndefendant knowingly transferred, possessed, or used a means of identification of another person\nwithout lawful authority; (3) the defendant knew that the means of identification belonged to\nanother person; and (4) the transfer, possession, or use was during and in relation to the predicate\nfelony. Sixth Circuit Pattern Jury Instr. 15.04. (“Nonaggravated” identity theft under 18 U.S.C.\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 9\n\n\n§ 1028(a)(7) requires proof of nearly identical elements. But § 1028A(c) enumerates the\npredicate felonies for aggravated identity theft, whereas, under § 1028(a)(7), “any unlawful\nactivity that constitutes a violation of Federal law, or that constitutes a felony under any\napplicable State or local law,” is a predicate offense. Section 1028A(a)(1) also provides for a\nmandatory minimum sentence of two years’ imprisonment, to be served consecutively with\nsentences imposed for convictions on other counts. 18 U.S.C. § 1028A(a)(1), (b).)\n\n The predicate felonies in the present case are mail fraud and conspiracy to commit mail\nfraud, both of which are enumerated as predicate felonies under § 1028A(c). For the crime\ncharged in count 38, the defendants used the names and personal identifying information of\nRhonda Nolen and Holly Sochocki. And for the crime charged in count 41, the defendants used\nthe names and personal identifying information of Deshawntia Moorer and Kjuan Jones. But\nAnthony and Sharon argue that there is no evidence in the record proving the third element of\naggravated identity theft—that they knew that they were using the names and personal\nidentifying information of real people.\n\n The government can use circumstantial evidence to demonstrate that a defendant knew\nthat he or she was using means of identification that belonged to another person. “Under\n[18 U.S.C. § 1028A], the government [is] required to prove beyond a reasonable doubt that [the\ndefendant] knew that the means of identification that he used belonged to another person. The\ngovernment need not have direct evidence of knowledge; circumstantial evidence can be\nsufficient.” United States v. Soto, 720 F.3d 51, 55 (1st Cir. 2013) (citation omitted).\n\n Taking such circumstantial evidence into account, we conclude that the record is not\ndevoid of evidence demonstrating that Anthony and Sharon knew that they were using the names\nand personal identifying information of real people. This evidence includes the two notebooks\nfound in Sharon’s house that had personal identifying information of identity-theft victims. She\nalso had some of these victims’ original identification documents. And her trash contained\ndocuments and other items demonstrating that she and her husband were using these stolen\nidentities in the fraudulent-tax-refund scheme. In total, law-enforcement officers recovered\ninformation in Sharon’s house relating to almost 100 different identity-theft victims.\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 10\n\n\n As for Anthony, he listed Rhonda Nolen and Brandi Shorter as authorized users of the\nP.O. Boxes associated with the Rhonda Nolen Trust. He used the driver’s license numbers of\nNolen and Shorter in order to open these P.O. Boxes. And law-enforcement officers found\npersonal identifying information for both women in Sharon’s house. The defendants repeatedly\nused identify-theft victims’ real names throughout the scheme. They put these victims’ names\non the false IRS 1041 tax-return forms, on the refund checks that they fraudulently caused the\nIRS to issue, on the P.O. Boxes to which the checks were sent, and on the bank accounts into\nwhich the checks were deposited.\n\n In United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the defendant similarly\nargued that the government failed to prove that she knew that she was using the identity of a real\nperson in committing aggravated identify theft. The Eleventh Circuit affirmed Holmes’s\nconviction, holding that her willingness to subject a stolen Social Security card to government\nscrutiny established that she knew that the Social Security card belonged to a real person. Id. at\n1258. And the court also held that Holmes’s success in obtaining a driver’s license and passport\nin the victim’s name showed that she knew that the identifying information used to obtain those\ndocuments belonged to another individual. Id.\n\n Similarly, in this case, the jury could have found that Anthony and Sharon were confident\nthat they were using the names and personal identifying information of real people because they\nsubjected the names used in their scheme to scrutiny by the IRS, the United States Postal\nService, and the banks. Furthermore, utilizing the analysis in Holmes, the defendants’ success in\nusing the stolen personal identifying information to create trusts, rent P.O. Boxes, and open bank\naccounts shows that they knew that the personal identifying information belonged to real people.\n\n The defendants, moreover, did not use personal identifying information from only\nidentity-theft victims. They also used the names and personal identifying information of their\nfriends and family in committing their fraudulent scheme. Anthony recruited his friends Darry\nPoole, Aaron Maddox, and Derrick McCoy, as well as Anthony’s longtime girlfriend Sydona\nRobinson, for their personal identifying information. Christopher also recruited others, including\nhis friends Brandon Bradley and Randi Hardy, as well as his fiancée Deyana Wagner. As the\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 11\n\n\ngovernment argues, this demonstrates that the defendants knew that they had to use the names\nand personal identifying information of real people in order for their scheme to succeed.\n\n In sum, the government put forth circumstantial evidence from which the jury could have\nconcluded beyond a reasonable doubt that Anthony and Sharon knew that they were using the\nnames and personal identifying information of real people. Nor have the defendants rebutted the\ngovernment’s evidence in any meaningful way. They do not dispute that the names and personal\nidentifying information that they used did, in fact, belong to real people. And significantly, they\noffer no explanation as to how they could have obtained such information without knowing that\nit belonged to other individuals. We therefore conclude that the record is not devoid of evidence\nshowing that Anthony and Sharon knew that they were using the names and personal identifying\ninformation of real people.\n\nC. Anthony’s and Christopher’s state-bar grievances against their attorneys did not create\n conflicts of interest that prevented the attorneys from providing effective assistance of\n counsel.\n\n We now move on to Anthony’s and Christopher’s argument that their attorneys did not\nprovide effective assistance of counsel because the Gandy brothers each filed state-bar\ngrievances against them. To start, we provide the context for these state-bar grievances.\n\n The trial in this case did not begin until roughly a year and a half after the indictment was\nissued. Each continuance had been agreed upon by counsel, and the parties filed appropriate\nstipulations under the Speedy Trial Act. About a month before trial, the defendants filed a pro se\ndocument titled “Objections to Stipulations to Continue Trial,” in which they complained that\nthey had not personally agreed to the continuances. This document was purportedly signed by\nAnthony, Christopher, Sharon, Durand Micheau, Derrick McCoy, and Shanel Seay.\n\n The district court overruled the objections on the ground that the defendants were not\npermitted to proceed pro se because they were represented by counsel. It also noted that the\ncontinuances had been agreed to by the parties. Anthony and Christopher then each tried to fire\ntheir respective attorneys and sought the appointment of new attorneys. The court conducted a\nhearing on the matter and ultimately concluded that there was no basis for the substitution of\ncounsel.\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 12\n\n\n Then, the week before trial, Anthony and Christopher filed grievances against their\nattorneys with the State Bar of Michigan. In these filings, the Gandy brothers each claimed that\nthey required new counsel in order to preserve their objections under the Speedy Trial Act.\nAnthony and Christopher followed up by filing motions for the substitution of counsel the day\nbefore the trial was set to begin, claiming that they were being denied the effective assistance of\ncounsel due their attorneys’ failure to raise their speedy-trial objections. At the same time,\ncounsel for Anthony and Christopher each moved to withdraw, claiming that the state-bar\ngrievances had created a conflict of interest between the attorneys and their clients.\n\n The district court conducted another hearing on the matter. Christopher testified during\nthe hearing that he “asked [his attorney] to file [the motion to dismiss based on the speedy-trial\nobjection] and [the attorney] didn’t file it, and that was [Christopher’s] issue with [his attorney].”\nAnthony and Christopher both testified that their only complaint with their respective attorneys\nwas that the attorneys did not further litigate the speedy-trial objections, which the district court\nhad already overruled. In fact, Anthony testified that his attorney was otherwise “an excellent\nattorney.”\n\n The district court found that there was no impairment in the defendants’ ability to\neffectively work with their attorneys. Furthermore, the court repeated its conclusion that the\nspeedy-trial objections had no merit. The court also noted that the state-bar grievances were\n“100 percent frivolous” and contrived by the defendants in order to avoid trial. In addition, the\ncourt concluded that counsel’s statements that their feelings had been hurt and that their pride\nhad been wounded were nothing more than “theatrics.” The court ultimately determined that\ncounsel had continued to work cooperatively and communicate extensively with their clients\neven while these motions were pending. It therefore denied Anthony’s and Christopher’s\nmotions to substitute new counsel and denied the attorneys’ motions to withdraw.\n\n Anthony and Christopher now argue that the state-bar grievances created a conflict of\ninterest that caused them to be denied the effective assistance of counsel. The Supreme Court in\nStrickland v. Washington, 466 U.S. 668 (1984), announced the standard for criminal defendants\nclaiming ineffective assistance of counsel. “First, the defendant must show that counsel’s\nperformance was deficient.” Id. at 687. Counsel’s performance is deficient when it “[falls]\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 13\n\n\nbelow an objective standard of reasonableness.” Id. at 688. “Second, the defendant must show\nthat the deficient performance prejudiced the defense.” Id. at 687.\n\n We use a modified version of the Strickland framework when the\nineffective-assistance-of-counsel claim is based on an alleged conflict of interest. United States\nv. Kilpatrick, 798 F.3d 365, 374–75 (6th Cir. 2015). Under this modified standard, a defendant\nmust point to specific instances in the record and make a factual showing that the attorney and\nthe defendant have inconsistent interests. Id. Proving a conflict of interest requires the\ndefendant to show that his attorney had competing obligations and chose to favor one interest\nover another, to the detriment of the representation of the defendant. Mickens v. Taylor,\n535 U.S. 162, 171 (2002). More specifically, the defendant must show that his attorney’s\nperformance was compromised as a result of a competing obligation. Id.\n\n Anthony and Christopher have failed to show that their attorneys had a conflict of interest\nbecause the state-bar grievances did not create conflicting obligations. The district court found\nthat the grievances were frivolous and that the defendants’ speedy-trial objections lacked merit.\nClaims by the attorneys that their feelings were hurt are not enough to create a conflict of\ninterest, and the court dismissed as hyperbole the attorneys’ assertions that they could not exert\nthe “passion” necessary to represent their clients. The court also found that there was no real\nbreakdown in the attorney-client relationship that prevented the attorneys from providing\neffective assistance. Anthony and Christopher were both able to communicate with their\nattorneys to assist them in preparing for trial.\n\n Furthermore, if the filing of state-bar grievances was in itself sufficient to create a\nconflict of interest that would prevent attorneys from providing effective representation, then\ncriminal defendants could habitually abuse this rule. Any defendant in a criminal case would be\nable to manufacture a frivolous argument against his or her attorney, file a state-bar grievance,\nand have the district court substitute new counsel. See United States v. Burns, 990 F.2d 1426,\n1438 (4th Cir. 1993) (noting that a ruling for a defendant claiming ineffective assistance of\ncounsel as a result of a meritless state-bar grievance “would invite criminal defendants anxious\nto rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on\nthe eve of trial”).\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 14\n\n\n And even if the grievances in question here had merit, they did not create a conflict of\ninterest because the grievances did not establish any competing obligations for the attorneys. If\nanything, they aligned the attorneys’ interests with those of their clients and incentivized the\nattorneys to work even harder. The attorneys must have recognized that if their clients were\nconvicted at trial, the alleged failure to pursue the speedy-trial objections would be highlighted.\nThey must have similarly recognized that an acquittal for their clients would render the\ngrievances moot. See, e.g., United States v. Leggett, 81 F.3d 220, 227 (D.C. Cir. 1996) (“[A]n\nattorney fearing an ineffective assistance of counsel claim has an incentive to do his best, not the\ncontrary.”).\n\n Because we conclude that Anthony’s and Christopher’s state-bar grievances against their\nattorneys did not create a conflict of interest, we need not address whether the alleged conflict\ncompromised the attorneys’ representation of their clients. But, in short, we note that Anthony\nand Christopher have failed to show that any of the alleged deficiencies by their attorneys were\ncaused by what they deem to be a conflict of interest.\n\nD. There was no plain error with respect to duplicity in the indictment or the lack of a\n specific unanimity jury instruction regarding the aggravated-identity-theft charges.\n\n Anthony’s next argument, joined by Sharon, challenges the aggravated-identity-theft\ncounts in the indictment on duplicity grounds and challenges the aggravated-identity-theft jury\ninstructions on unanimity grounds. First, Anthony argues that counts 38 and 41 of the\nindictment are duplicitous because the government charged several discrete violations in each\ncount. “An indictment is duplicitous if it sets forth separate and distinct crimes in one count.”\nUnited States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) (quoting United States v. Davis, 306\nF.3d 398, 415 (6th Cir. 2002)). Second, he argues that the district court failed to give a\nunanimity jury instruction regarding the aggravated-identity-theft charges. These arguments\nraise the same substantive issue, so we will address them together. See id. (“[T]he primary\nconcern [with a duplicitous indictment] is that a defendant may be deprived of his right to a\nunanimous jury verdict.”).\n\n Anthony and Sharon did not raise the duplicity challenge to the indictment before the\ndistrict court. They also did not request a specific jury instruction on unanimity for the\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 15\n\n\naggravated-identity-theft charges. We therefore review these arguments under the plain-error\nstandard. Id. at 445 (“[W]hen a defendant raises a challenge to a duplicitous indictment for the\nfirst time on appeal . . . [and w]here the defendant does not object to the district court’s\ninstructions to the jury, review is limited to plain error.”). Under the plain-error standard, “we\nmust consider whether there was plain error that affects substantial rights and that, in our\ndiscretionary view, seriously affects the fundamental fairness, integrity, or public reputation of\njudicial proceedings.” United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (citing\nJohnson v. United States, 520 U.S. 461, 466 (1997)).\n\n Anthony argues that the indictment is duplicitous regarding counts 38 and 41, and that\nthe jury instructions failed to cure this defect. Specifically, he contends that each of these counts\nalleged more than one predicate offense and more than one victim. Count 38 refers to the\nvictims as Individuals C and D—later identified as Rhonda Nolen and Holly Sochocki. And\ncount 41 refers to the victims as Individuals H and I—later identified as Deshawntia Moorer and\nKjuan Jones. Anthony relies primarily on United States v. Duncan, 850 F.2d 1104 (6th Cir.\n1988), in support of his argument that the verdict must be unanimous regarding the predicate\noffense and the victim.\n\n This court held in Duncan that a jury verdict must be unanimous as to which false\nstatement violated 26 U.S.C. §§ 7206(1) and 7602(2), statutes that prohibit the making and\npreparing of a tax return containing a materially false statement. Id. at 1113. We also held that\nthe distinct court was required to use a specific unanimity jury instruction when faced with the\ngenuine risk of a nonunanimous verdict. Id. at 1113–14. The problem with Duncan, however, is\nthat this court in United States v. Schmeltz, 667 F.3d 685, 688 (6th Cir. 2011), noted that Duncan\nhad been abrogated by Schad v. Arizona, 501 U.S. 624 (1991). In Schad, the Supreme Court\nrecognized “a long-established rule of the criminal law that an indictment need not specify which\novert act, among several named, was the means by which a crime was committed.” Id. at 631.\n\n The Court in Schad further noted as follows:\n\n We have never suggested that in returning general verdicts in such cases the\n jurors should be required to agree upon a single means of commission, any more\n than the indictments were required to specify one alone. In these cases, as in\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 16\n\n\n litigation generally, “different jurors may be persuaded by different pieces of\n evidence, even when they agree upon the bottom line. Plainly there is no general\n requirement that the jury reach agreement on the preliminary factual issues which\n underlie the verdict.\n\nId. at 631–32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,\nconcurring) (footnotes omitted)). Because Duncan has been abrogated, Anthony has not pointed\nto any binding precedent that establishes that each victim of identity theft must be the subject of\na separate charge or that a jury verdict must be unanimous regarding the victim of identity theft.\n\n Furthermore, based on the evidence presented at trial, no reasonable juror could have\nfound that Anthony and Sharon used the name and personal information of Rhonda Nolen but\nnot of Holly Sochocki, or vice versa, because the two names were used together on the same\ninstruments. The Form 1041 submitted for the Rhonda Nolen Trust, for instance, identified\nHolly Sochocki as the trustee. And the refund check listed both Nolen and Sochocki.\n\n The same is true for count 41 regarding Deshawntia Moorer and Kjuan Jones. For the\nDeshawntia Moorer Trust, the Form 1041 listed Deshawntia Moorer and Kjuan Jones on\nsuccessive lines. And the refund check also listed both names. Because no reasonable juror\ncould have found that one name was used but not the other, there was no risk of a nonunanimous\nverdict regarding the multiple victims named in each count. See United States v. Kakos, 483\nF.3d 441, 446 (6th Cir. 2007) (observing that, where the defendant was charged in a single count\nwith knowingly receiving both a stolen trailer and the meat contained in the trailer, his argument\nthat some jurors might have concluded that he knew only that the trailer was stolen, whereas\nothers might have concluded that he knew only that the meat was stolen, was inconsistent with\nthe evidence). Accordingly, there was no plain error on duplicity grounds regarding the\nindictment naming multiple victims in counts 38 and 41, and the district court was not required\nto issue a specific unanimity instruction on this issue.\n\n We will now address Anthony’s argument that the indictment was duplicitous because\ncounts 38 and 41 listed multiple predicate felonies. Each count alleged that the crimes of\naggravated identity theft were committed “during and in relation to the offenses of conspiracy to\ncommit mail fraud and mail fraud.”\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 17\n\n\n Even assuming that the district court erred in not providing a specific unanimity\ninstruction for the aggravated-identity-theft counts regarding the predicate felonies, there was no\nissue with respect to unanimity. The jury unanimously found both Anthony and Sharon guilty of\nconspiracy to commit mail fraud, which was one of the predicate felonies for aggravated identity\ntheft. Anthony was acquitted of the predicate substantive-mail-fraud offenses in counts 10, 14,\n28, and 31. So we know from the verdict that the jury unanimously believed that the only\npredicate offense that Anthony was guilty of is conspiracy to commit mail fraud.\n\n True enough, Sharon was convicted of the substantive-mail-fraud offenses in counts 10\nand 28 for the Nolen Trust. But that does not present an issue regarding whether the jury’s\nverdict was unanimous for the aggravated-identity-theft charges in counts 38 and 41 because the\njury unanimously believed that Sharon committed the predicate offenses of both mail fraud and\nconspiracy to commit mail fraud. We therefore have no concern that some jurors found Sharon\nguilty of only the predicate offense of mail fraud, whereas others found her guilty of only the\npredicate conspiracy offense. The jury found her guilty of both offenses. In sum, Anthony and\nSharon were not “deprived of [their] right to a unanimous jury verdict.” See Kakos, 483 F.3d at\n443.\n\nE. The district court did not commit plain error regarding its aiding-and-abetting jury\n instruction for aggravated identity theft by not specifying that a defendant must\n willfully cause another person to commit every element of aggravated identity theft.\n\n This brings us to the first of Anthony’s arguments, joined by Sharon, challenging the\ndistrict court’s jury instruction regarding aiding-and-abetting liability. Anthony contends that the\ncourt erred in its jury instruction because it did not specify that a defendant must have knowledge\nthat another person would use a real identity-theft victim’s personal information.\n\n Specifically, Anthony argues that, under Rosemond v. United States, 572 U.S. 65 (2014),\nthe district court must instruct the jury that aiding-and-abetting liability applies only if the\ndefendant takes an affirmative act in furtherance of the underlying offense with the intent to\nfacilitate that offense’s commission. See id. at 71, 76. The defendant, Anthony contends, must\nhave knowledge that another person will commit each element of the crime in order to be found\nguilty. See id.\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 18\n\n\n Rosemond concerned aiding-and-abetting liability under 18 U.S.C. § 924(c), which\ncriminalizes using a firearm “during and in relation to” a drug-trafficking crime or a crime of\nviolence. The Supreme Court held that “intent must go to the specific and entire crime charged,”\ni.e., “the full scope (predicate crime plus gun use) of § 924(c).” Id. at 76. Anthony argues that\nthe same reasoning applies in the present case because aggravated identity theft under 18 U.S.C.\n§ 1028A(a)(1) is also a compound crime that requires the commission of a criminal act—\ntransferring, possessing, or using a means of identification of another person without lawful\nauthority—“during and in relation to” a predicate offense. Applying the principles articulated in\nRosemond to the present case, Anthony argues that the jury instructions improperly failed to\nspecify that he could be found guilty of aiding and abetting only if he knew that another person\nwould use a real identity-theft victim’s personal information.\n\n If an objection to a jury instruction was not preserved before the district court, we review\nthe instruction under the plain-error standard, “considering whether ‘the instructions, when taken\nas a whole, were so clearly wrong as to produce a grave miscarriage of justice.’” United States\nv. Wood, 364 F.3d 704, 708 (6th Cir. 2004) (quoting United States v. Sanderson, 966 F.2d 184,\n187 (6th Cir. 1992)). Anthony argues that his objection was preserved, but before the district\ncourt he challenged only the sufficiency of the evidence to support an aiding-and-abetting\ninstruction. That argument is raised again on appeal. See below, Part II.F. But none of the\ndefendants argued before the district court that the aiding-and-abetting instruction itself was\nlegally incorrect. Accordingly, we review the district court’s instruction under the plain-error\nstandard.\n\n The district court instructed the jury on aiding-and-abetting liability for aggravated\nidentity theft as follows:\n\n First, that the defendant caused any person to commit the act of knowingly using\n without lawful authority a means of identification of another individual;\n Second, if the defendant had committed the act, it would have been the crime of\n Aggravated Identity Theft;\n Third, that the defendant willfully caused the act to be done.\n Proof that the defendant may have known about the crime, even if he or she was\n there when it was committed, is not enough for you to find him or her guilty. You\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 19\n\n\n may consider this in deciding whether the government has proved that he or she\n caused the act to be done, but without more it is not enough. What the\n government must prove is that the defendant willfully did something to cause the\n act to be committed.\n\n The second element negates Anthony’s objection based on Rosemond because the district\ncourt had already instructed the jury on the crime of aggravated identity theft using the proper\nelements. Among those elements was the requirement “that the defendant knew the means of\nidentification belonged to another person.” Accordingly, the jury instructions as a whole were\nsufficiently clear that, in order for the jury to find Anthony or Sharon guilty of aggravated\nidentity theft under an aiding-and-abetting theory of liability, it would have to find that he or she\nwillfully caused another person to use someone else’s identification without lawful authority,\nknowing that the identification used belonged to someone else. We thus find no plain error in\nthe aiding-and-abetting jury instruction.\n\nF. Sufficient evidence justified the district court’s aiding-and-abetting jury instruction for\n aggravated identity theft.\n\n This leads us to Anthony’s next argument, also joined by Sharon, challenging the\nsufficiency of the evidence to support the district court’s aiding-and-abetting jury instruction.\nThe government acknowledges that this objection was preserved, so we review the court’s\ndecision to include the instruction under the abuse-of-discretion standard. United States v.\nEaton, 784 F.3d 298, 306–07 (6th Cir. 2015). “Under this standard, we ‘review the instructions\nas a whole, in order to determine whether they adequately informed the jury of the relevant\nconsiderations and provided a basis in law for aiding the jury in reaching its decision.’” Id.\n(quoting United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008)).\n\n Anthony argues that he had no role in the tax returns, the EIN numbers, or the trust\ndocuments regarding the Rhonda Nolen and Deshawntia Moorer Trusts. But the evidence shows\notherwise. For the Rhonda Nolen Trust, for instance, Anthony rented a P.O. Box in November\n2012 and listed Nolen as an authorized recipient. That same day, somebody prepared a\nfraudulent tax return for the trust using Nolen’s forged signature and sent the return to the IRS.\nThe fraudulent return requested that a refund check be sent to the P.O. Box opened by Anthony.\nAnthony went to the bank with Christopher when Christopher set up the bank account for the\n\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 20\n\n\nNolen Trust. Then, when the check arrived in the P.O. Box rented by Anthony, Anthony and\nChristopher took the check to the bank to deposit it into the account that they had opened.\n\n Anthony points out that the surveillance photo from the bank depicts him departing\ncarrying a sheaf of papers, which he claims was a newspaper. But when somebody enters a bank\nempty handed, opens a trust account, then leaves carrying a sheaf of papers, the most logical\ninference is that these papers relate to the new account. A reasonable jury could conclude from\nthese facts that Anthony either prepared the false return, forged Nolen’s signature, and mailed\nthe return to the IRS himself, or that he caused another person to commit these acts. In sum, the\ndistrict court did not abuse its discretion in deciding to use an aiding-and-abetting instruction\nwith regard to count 38 because Anthony would be liable whether he prepared the false tax\nreturn himself or whether he caused another to do so.\n\n Evidence in the record also supports the aiding-and-abetting instruction regarding count\n41, the aggravated-identity-theft count relating to the Deshawntia Moorer Trust. As with the\nRhonda Nolen Trust, Anthony procured the P.O. Box to which the refund check for the Moorer\nTrust was sent. He recruited Poole to help with this task. The Moorer Trust designated Seay as\nthe trustee, and she testified that Anthony and Christopher were responsible for her involvement\nin the criminal scheme. Seay was accompanied by Christopher and Sharon when she took the\ncheck bearing Moorer’s and Kjuan Jones’s names to the bank to deposit it. And she testified that\nAnthony demanded that she make withdrawals from the account, with the money going to him.\nA reasonable juror could find that one of the defendants caused somebody else to create and mail\nthe fraudulent IRS return for the Moorer Trust. The district court therefore did not abuse its\ndiscretion in instructing the jury on aiding-and-abetting liability under 18 U.S.C. § 2(b) for the\ncount 41 aggravated-identity-theft charge.\n\n III. CONCLUSION\n\n For all of the reasons set forth above, we AFFIRM all aspects of the district court’s\njudgment.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Christopher A. GANDY (17-2020); Anthony R. Gandy (18-1106); Sharon Gandy-Micheau (18-1137), Defendants-Appellants.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0118p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n │\\n v. > Nos. 17-2020/18-1106/1137\\n │\\n │\\n CHRISTOPHER A. GANDY (17-2020); ANTHONY R. │\\n GANDY (18-1106); SHARON GANDY-MICHEAU │\\n (18-1137), │\\n Defendants-Appellants. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Ann Arbor.\\n No. 5:15-cr-20338—Judith E. Levy, District Judge.\\n\\n Argued: May 1, 2019\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Gary W. Crim, Dayton, Ohio, for Appellant in 17-2020. Deborah A. Solove,\\nWesterville, Ohio, for Appellant in 18-1106. Daniel R. Hurley, UNITED STATES\\nATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Gary W. Crim, Dayton,\\nOhio, for Appellant in 17-2020. Deborah A. Solove, Westerville, Ohio, for Appellant in 18-\\n1106. Andrew P. Avellano, Columbus, Ohio, for Appellant in 18-1137. Daniel R. Hurley,\\nUNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n RONALD LEE GILMAN, Circuit Judge. Anthony Gandy, his brother Christopher\\nGandy, their sister Sharon Gandy-Micheau, and Sharon’s husband Durand Micheau sought tax\\nrefunds for 21 separate fictitious trusts that they created. The defendants’ scheme was to submit\\nfictitious tax returns to the Internal Revenue Service (IRS) for the purpose of claiming refunds\\nfor nonexistent excess withholding. They were successful in obtaining refund checks based upon\\nmany of these returns, receiving over $360,000 in ill-gotten money. The defendants were\\nconvicted of several crimes, including mail fraud, conspiracy to commit mail fraud, aggravated\\nidentity theft, conspiracy to commit identity theft, and illegal monetary transactions.\\n\\n Anthony, Christopher, and Sharon now appeal, arguing that (1) insufficient evidence\\nsupports Sharon’s convictions, (2) insufficient evidence supports the finding that Anthony and\\nSharon knew that they were using the names and personal identifying information of real people,\\n(3) Anthony and Christopher were deprived of the effective assistance of counsel because their\\nstate-bar grievances against their attorneys created conflicts of interest, (4) the indictment was\\nduplicitous regarding the aggravated-identify-theft charges and the district court failed to cure\\nthis defect by issuing a specific unanimity jury instruction, (5) the court’s aiding-and-abetting\\njury instruction was legally incorrect, and (6) insufficient evidence supports the court’s\\naiding-and-abetting jury instruction. For the reasons set forth below, we AFFIRM all aspects of\\nthe district court’s judgment.\\n\\n I. BACKGROUND\\n\\nA. Factual background\\n\\n The defendants created trust documents using their own names, their friends’ names, or\\nthe names of identity-theft victims as trustees, successor trustees, and beneficiaries. They then\\nobtained an Employer Identification Number (EIN) from the IRS for each trust. Using these\\nEINs, they submitted fictitious IRS Form 1041s, the form used for income-tax returns for estates\\nand trusts. These tax returns falsely claimed that substantially more income had been withheld\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 3\\n\\n\\nfrom each trust than was due in tax liability, and that the trust was accordingly due a refund in\\nthe amount of the excess withholding.\\n\\n On at least 14 occasions, the IRS relied on the veracity of the signed returns, which were\\nsubmitted under penalty of perjury, and issued refund checks to the fictitious trusts. The checks\\nwere generally mailed to Post Office (P.O.) Boxes that the defendants had obtained. Once they\\nreceived the checks, the defendants deposited the funds into bank accounts that they had created\\nfor the trusts, or at supermarkets or check-cashing businesses in Detroit that charged high fees.\\nAll told, the defendants requested $1,425,548 in refunds, the IRS issued refund checks totaling\\n$939,103.05, and the defendants netted $360,469.05 from those checks. The defendants were\\nnot able to obtain the full $939.103.05 because several of the banks closed the trust accounts\\nbefore the defendants were able to withdraw all the funds. In addition, the IRS seized two\\nchecks sent to a P.O. Box at a UPS store because the owner of the store alerted the authorities\\nabout the suspicious checks.\\n\\n The defendants used their own identities in the early days of the scheme. In June 2012,\\nfor example, a Form 1041 was submitted to the IRS on behalf of the Sharon Trust Fund.\\nSharon’s sister Pamela Gandy signed the return and sought a refund of $33,856 for excess\\nwithholding. Sharon was listed as the trustee of the fund and the return was mailed by Anthony.\\nFurthermore, the return address was listed as a P.O. Box that was obtained by Sharon using her\\nreal driver’s license. Sharon also used her real identification to cash the refund check at a\\nsupermarket in Detroit.\\n\\n The defendants then recruited family, friends, and acquaintances to lend their personal\\ninformation for use in the scheme. For instance, Christopher and his fiancée, Deyana Wagner,\\nsubmitted a return on behalf of a fictitious C&D Trust. They had the check sent to a P.O. Box\\nrented by Anthony, and then cashed the $35,051.80 check at a check-cashing store in Detroit.\\n\\n Similarly, Anthony recruited his longtime girlfriend, Sydona Robinson, to submit a\\nfraudulent return. After Anthony established a trust in Robinson’s name using her real personal\\nidentifying information, he submitted a Form 1041 that claimed a refund of $66,629. Anthony\\nnamed his friend Derrick McCoy as a trustee and used a P.O. Box that he controlled as the return\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 4\\n\\n\\naddress. McCoy and Anthony deposited the refund check, which Robinson claimed that she\\nnever saw, into an account at Fifth Third Bank.\\n\\n Anthony also had McCoy set up a fictitious trust. A Form 1041, submitted by Anthony,\\nclaimed that McCoy’s trust was due a refund of $38,986. The refund check was mailed to\\nanother P.O. Box controlled by Anthony. McCoy and Anthony cashed the check in Detroit,\\npaying a $1,500 fee. According to McCoy, Anthony kept almost all the money for himself.\\n\\n Anthony similarly brought his friend Darry Poole into the scheme, falsely telling Poole\\nthat he would help Poole with his taxes. Instead, Anthony used Poole’s personal information to\\ncreate the Darry Poole Trust, and he then submitted a Form 1041 on behalf of the trust. Anthony\\nlisted himself as the trustee and claimed that the trust was due a $34,888 refund for excess\\nwithholding. The IRS sent a refund check for that amount to a P.O. Box controlled by Anthony,\\nwho cashed the check without giving any of the funds to Poole.\\n\\n Anthony also induced his friend Aaron Maddox to participate in the scheme. Maddox\\ntestified that Anthony had him rent a P.O. Box, which was listed as the return address for several\\ntrusts. Anthony prepared the paperwork to set up a trust in Maddox’s name and claimed a refund\\nof $58,386 for the trust, but no funds were ever sent by the IRS. Maddox’s name was used for\\nother fictitious trusts as well, including the Capital One Investment Trust and the Aspen\\nInvestment Trust.\\n\\n Christopher also recruited friends into the scheme. For instance, he falsely told his friend\\nBrandon Bradley that he could help Bradley get government money to repair houses in Detroit.\\nBradley gave Christopher his personal information, and Christopher created the Brandon Bradley\\nTrust, seeking a refund of $34,231. They received the refund check and cashed it at a local\\ncheck-cashing store, paying a fee of between $4,000 and $5,000. Bradley kept $5,000 for\\nhimself and Christopher kept the rest of the money.\\n\\n Christopher and Anthony jointly recruited Shanel Seay, who had been friends with both\\nbrothers for some time, into the fraudulent scheme. The brothers set up a trust in Seay’s name\\nand submitted a return seeking a refund of $36,550. No refund was issued for this trust, but the\\nbrothers found other ways for Seay to help with the scheme. For example, they named Seay as\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 5\\n\\n\\nthe trustee for a fictitious Deshawntia Moorer Trust. The Gandy brothers successfully obtained a\\nrefund check for this trust, and Seay opened a bank account for the trust and deposited the refund\\ncheck into the bank account. Christopher gave Seay the documents needed to open the bank\\naccount and deposit the check, and Christopher and Sharon both accompanied Seay to the bank.\\nShortly thereafter, Anthony and Christopher directed Seay to withdraw the money from the\\ntrust’s bank account in a series of withdrawals.\\n\\n The defendants also used Seay to help with another fraudulent trust. Christopher falsely\\ntold his friend Randi Hardy that he could help her get money to promote her music career. He\\nthen used Hardy’s personal information to set up a fictitious trust and filed a return for the trust,\\nseeking a refund of $83,597. Hardy denied signing the return, but she did admit to helping cash\\nthe refund check. The defendants had Seay accompany Hardy and Hardy’s cousin, who was\\nlisted as the trustee, to the bank to deposit the refund check. Seay opened a bank account for the\\ntrust and deposited the refund check into the account, but she testified that the Gandys kept\\nalmost all the funds for themselves.\\n\\n In order to run the fraudulent scheme, the defendants had to keep track of the\\ndocumentation for 21 separate trusts, obtain and track EIN numbers for each trust, complete and\\nfile a Form 1041 seeking a refund for each trust, obtain P.O. Boxes to use as the return addresses\\nfor the refund checks, open bank trust accounts, and deposit the refund checks. Sharon rented at\\nleast three P.O. Boxes in her name. Anthony rented several P.O. Boxes himself and controlled\\nseveral others that he had friends rent in their own names.\\n\\n Sharon kept digital and written records for many of the fictitious trusts. During a search\\nof her house, law-enforcement officers found two notebooks containing names, addresses, and\\nidentifying information for several identity-theft victims. They also found additional information\\nregarding dozens of other stolen identities. Moreover, the law-enforcement officers conducted\\ntrash pulls at Sharon’s house to confirm that the defendants were running a tax-fraud criminal\\nenterprise. Through these thrash pulls, they discovered that the defendants had ordered a “For\\nDeposit Only” stamp for one of their fraudulent trust accounts. The stamp purported to represent\\nthe signature of Herbert Coleman White, whose house in Detroit was robbed in 2012.\\nLaw-enforcement officers also found White’s driver’s license, Social Security card, and other\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 6\\n\\n\\npersonal identifying information during their search of Sharon’s house. The defendants used\\nWhite’s name and personal information in connection with several of the fictitious trusts that\\nthey created in order to obtain fraudulent tax-refund checks.\\n\\n A number of the names and personal information used during the scheme in fact\\nbelonged to people who had their wallets or purses stolen in the Detroit area. The identity-theft\\nvictims whose information the defendants used include Deshawntia Moorer, Kjuan Jones, Brandi\\nShorter, Alania Curry, Holly Sochocki, Rhonda Nolen, Danisha Smith, and Lia Turla. Trusts in\\nthe names of Moorer and Nolen were established by the defendants, and the defendants\\nsuccessfully obtained fraudulent tax refunds for these trusts. The defendants also set up trusts in\\nCurry’s and Shorter’s names and filed fraudulent tax returns seeking refunds. And Jones and\\nSochocki were identified as trustees of certain trusts. None of these identity-theft victims knew\\nthat their names and personal identifying information were being used in the defendants’\\nfraudulent scheme.\\n\\nB. Procedural background\\n\\n Anthony, Christopher, and Sharon were indicted on multiple counts arising out of their\\nscheme to obtain fraudulent tax refunds on behalf of these fictitious trusts. Durand Micheau\\n(Sharon’s husband), Seay, and McCoy were also indicted. Seay reached an agreement to\\ncooperate with the government and testified during the trial. Micheau’s case was severed. The\\nGandy siblings and McCoy were tried together before a jury. McCoy was acquitted, but\\nAnthony, Christopher, and Sharon were convicted on several of the counts charged in the\\nindictment. Anthony was sentenced to 80 months’ imprisonment and Christopher and Sharon\\nwere each sentenced to 72 months’ imprisonment. The district court explained that Anthony’s\\nterm of imprisonment was longer because of his criminal history. All three defendants and\\nDurand Micheau were also ordered to pay restitution, jointly and severally, in the amount of\\n$360,469.05—the amount of ill-gotten gains they collectively received.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 7\\n\\n\\n II. ANALYSIS\\n\\nA. Sufficient evidence in the record supports Sharon’s convictions.\\n\\n We begin with Sharon’s argument that there is insufficient evidence in the record to\\nsupport the verdict against her. At trial, Sharon’s counsel did not renew her motion for a\\njudgment of acquittal at the close of the evidence. See Fed. R. Crim. P. 29. We therefore must\\ndetermine “only whether the trial resulted in a ‘manifest miscarriage of justice.’” See United\\nStates v. Williams, 612 F.3d 417, 423 (6th Cir. 2010) (quoting United States v. Khalil, 279 F.3d\\n358, 368 (6th Cir. 2002)). A manifest miscarriage of justice means that the record is “‘devoid’ of\\nevidence of guilt.” Id. (quoting United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998)).\\n\\n Sharon was convicted of mail fraud, conspiracy to commit mail fraud, aggravated identity\\ntheft, conspiracy to commit identity theft, and illegal monetary transactions. She argues\\ngenerally that none of the convictions can stand because the record is devoid of evidence that she\\nhad the intent to defraud anyone. More specifically, she argues that there was no evidence\\ndemonstrating that she knew that the trusts she helped set up would be used for illicit purposes.\\n\\n We are not persuaded that the record is devoid of evidence of Sharon’s guilt. Among\\nother things, she personally cashed a check from the IRS for $33,856 at a supermarket in Detroit.\\nThe check was made out to the Sharon Trust Fund, and she knew the nine-digit EIN assigned to\\nthe trust by the IRS. This refund check was issued because of a tax return filed by the trust and\\nsigned by Sharon’s sister that falsely claimed that the trust had $33,856 in earnings withheld\\ndespite the fact that the trust had no taxable income. And Sharon did more than just cash refund\\nchecks. She rented P.O. Boxes used to obtain some of the refund checks and went to the bank to\\nassist in setting up fraudulent trust accounts on multiple occasions.\\n\\n In addition, the evidence found in Sharon’s house constitutes proof regarding her\\nknowledge that the refund checks that she cashed were fraudulently obtained. Law-enforcement\\nofficers found her notebooks containing information for several of the fictitious trusts and\\nfraudulent returns. They also conducted trash pulls, finding a stamp in the name of Herbert\\nColeman White, an identity-theft victim whom Sharon did not know. Furthermore,\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 8\\n\\n\\nlaw-enforcement officers found White’s Social Security card and driver’s license, as well as the\\npersonal identifying information of dozens of other people, in Sharon’s house.\\n\\n Although there was no direct evidence proving Sharon’s intent, the jurors heard ample\\ncircumstantial evidence from which they could conclude that she knew that the trusts were\\ncreated for an illicit purpose. “[I]ntent to defraud can be proven by circumstantial evidence and\\nby inferences drawn from the scheme itself.” United States v. Parkes, 668 F.3d 295, 302 (6th\\nCir. 2012) (quoting United States v. Isaiah, 434 F.3d 513, 519–20 (6th Cir. 2006)). “[W]e have\\nnever questioned the sufficiency of circumstantial evidence in support of a criminal conviction,\\neven though proof beyond a reasonable doubt is required.” Desert Palace, Inc. v. Costa, 539\\nU.S. 90, 100 (2003). “And juries are routinely instructed that ‘[t]he law makes no distinction\\nbetween the weight or value to be given to either direct or circumstantial evidence.’” Id.\\n(alteration in original) (quoting 1A Kevin F. O’Malley, Jay E. Grenig & William C. Lee, Federal\\nJury Practice and Instructions: Criminal § 12.04 (5th ed. 2000)). Such an instruction was\\nprovided in the present case.\\n\\nB. The record is not devoid of evidence that Anthony and Sharon knew that their scheme\\n used the names and personal information of real people.\\n\\n Anthony and Sharon next challenge their convictions on counts 38 and 41 of the\\nindictment, which charged them with aggravated identity theft, in violation of 18 U.S.C.\\n§ 1028A(a)(1). They argue that the record is devoid of evidence proving that they knew that\\nthey were using the names and personal identifying information of real people. Because\\nAnthony and Sharon failed to renew their motions for a judgment of acquittal at the close of the\\nevidence, we review their challenge under the manifest-miscarriage-of-justice standard. See\\nWilliams, 612 F.3d at 423.\\n\\n A conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1) requires proof\\nof the following elements: (1) the defendant committed a specified predicate felony; (2) the\\ndefendant knowingly transferred, possessed, or used a means of identification of another person\\nwithout lawful authority; (3) the defendant knew that the means of identification belonged to\\nanother person; and (4) the transfer, possession, or use was during and in relation to the predicate\\nfelony. Sixth Circuit Pattern Jury Instr. 15.04. (“Nonaggravated” identity theft under 18 U.S.C.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 9\\n\\n\\n§ 1028(a)(7) requires proof of nearly identical elements. But § 1028A(c) enumerates the\\npredicate felonies for aggravated identity theft, whereas, under § 1028(a)(7), “any unlawful\\nactivity that constitutes a violation of Federal law, or that constitutes a felony under any\\napplicable State or local law,” is a predicate offense. Section 1028A(a)(1) also provides for a\\nmandatory minimum sentence of two years’ imprisonment, to be served consecutively with\\nsentences imposed for convictions on other counts. 18 U.S.C. § 1028A(a)(1), (b).)\\n\\n The predicate felonies in the present case are mail fraud and conspiracy to commit mail\\nfraud, both of which are enumerated as predicate felonies under § 1028A(c). For the crime\\ncharged in count 38, the defendants used the names and personal identifying information of\\nRhonda Nolen and Holly Sochocki. And for the crime charged in count 41, the defendants used\\nthe names and personal identifying information of Deshawntia Moorer and Kjuan Jones. But\\nAnthony and Sharon argue that there is no evidence in the record proving the third element of\\naggravated identity theft—that they knew that they were using the names and personal\\nidentifying information of real people.\\n\\n The government can use circumstantial evidence to demonstrate that a defendant knew\\nthat he or she was using means of identification that belonged to another person. “Under\\n[18 U.S.C. § 1028A], the government [is] required to prove beyond a reasonable doubt that [the\\ndefendant] knew that the means of identification that he used belonged to another person. The\\ngovernment need not have direct evidence of knowledge; circumstantial evidence can be\\nsufficient.” United States v. Soto, 720 F.3d 51, 55 (1st Cir. 2013) (citation omitted).\\n\\n Taking such circumstantial evidence into account, we conclude that the record is not\\ndevoid of evidence demonstrating that Anthony and Sharon knew that they were using the names\\nand personal identifying information of real people. This evidence includes the two notebooks\\nfound in Sharon’s house that had personal identifying information of identity-theft victims. She\\nalso had some of these victims’ original identification documents. And her trash contained\\ndocuments and other items demonstrating that she and her husband were using these stolen\\nidentities in the fraudulent-tax-refund scheme. In total, law-enforcement officers recovered\\ninformation in Sharon’s house relating to almost 100 different identity-theft victims.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 10\\n\\n\\n As for Anthony, he listed Rhonda Nolen and Brandi Shorter as authorized users of the\\nP.O. Boxes associated with the Rhonda Nolen Trust. He used the driver’s license numbers of\\nNolen and Shorter in order to open these P.O. Boxes. And law-enforcement officers found\\npersonal identifying information for both women in Sharon’s house. The defendants repeatedly\\nused identify-theft victims’ real names throughout the scheme. They put these victims’ names\\non the false IRS 1041 tax-return forms, on the refund checks that they fraudulently caused the\\nIRS to issue, on the P.O. Boxes to which the checks were sent, and on the bank accounts into\\nwhich the checks were deposited.\\n\\n In United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the defendant similarly\\nargued that the government failed to prove that she knew that she was using the identity of a real\\nperson in committing aggravated identify theft. The Eleventh Circuit affirmed Holmes’s\\nconviction, holding that her willingness to subject a stolen Social Security card to government\\nscrutiny established that she knew that the Social Security card belonged to a real person. Id. at\\n1258. And the court also held that Holmes’s success in obtaining a driver’s license and passport\\nin the victim’s name showed that she knew that the identifying information used to obtain those\\ndocuments belonged to another individual. Id.\\n\\n Similarly, in this case, the jury could have found that Anthony and Sharon were confident\\nthat they were using the names and personal identifying information of real people because they\\nsubjected the names used in their scheme to scrutiny by the IRS, the United States Postal\\nService, and the banks. Furthermore, utilizing the analysis in Holmes, the defendants’ success in\\nusing the stolen personal identifying information to create trusts, rent P.O. Boxes, and open bank\\naccounts shows that they knew that the personal identifying information belonged to real people.\\n\\n The defendants, moreover, did not use personal identifying information from only\\nidentity-theft victims. They also used the names and personal identifying information of their\\nfriends and family in committing their fraudulent scheme. Anthony recruited his friends Darry\\nPoole, Aaron Maddox, and Derrick McCoy, as well as Anthony’s longtime girlfriend Sydona\\nRobinson, for their personal identifying information. Christopher also recruited others, including\\nhis friends Brandon Bradley and Randi Hardy, as well as his fiancée Deyana Wagner. As the\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 11\\n\\n\\ngovernment argues, this demonstrates that the defendants knew that they had to use the names\\nand personal identifying information of real people in order for their scheme to succeed.\\n\\n In sum, the government put forth circumstantial evidence from which the jury could have\\nconcluded beyond a reasonable doubt that Anthony and Sharon knew that they were using the\\nnames and personal identifying information of real people. Nor have the defendants rebutted the\\ngovernment’s evidence in any meaningful way. They do not dispute that the names and personal\\nidentifying information that they used did, in fact, belong to real people. And significantly, they\\noffer no explanation as to how they could have obtained such information without knowing that\\nit belonged to other individuals. We therefore conclude that the record is not devoid of evidence\\nshowing that Anthony and Sharon knew that they were using the names and personal identifying\\ninformation of real people.\\n\\nC. Anthony’s and Christopher’s state-bar grievances against their attorneys did not create\\n conflicts of interest that prevented the attorneys from providing effective assistance of\\n counsel.\\n\\n We now move on to Anthony’s and Christopher’s argument that their attorneys did not\\nprovide effective assistance of counsel because the Gandy brothers each filed state-bar\\ngrievances against them. To start, we provide the context for these state-bar grievances.\\n\\n The trial in this case did not begin until roughly a year and a half after the indictment was\\nissued. Each continuance had been agreed upon by counsel, and the parties filed appropriate\\nstipulations under the Speedy Trial Act. About a month before trial, the defendants filed a pro se\\ndocument titled “Objections to Stipulations to Continue Trial,” in which they complained that\\nthey had not personally agreed to the continuances. This document was purportedly signed by\\nAnthony, Christopher, Sharon, Durand Micheau, Derrick McCoy, and Shanel Seay.\\n\\n The district court overruled the objections on the ground that the defendants were not\\npermitted to proceed pro se because they were represented by counsel. It also noted that the\\ncontinuances had been agreed to by the parties. Anthony and Christopher then each tried to fire\\ntheir respective attorneys and sought the appointment of new attorneys. The court conducted a\\nhearing on the matter and ultimately concluded that there was no basis for the substitution of\\ncounsel.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 12\\n\\n\\n Then, the week before trial, Anthony and Christopher filed grievances against their\\nattorneys with the State Bar of Michigan. In these filings, the Gandy brothers each claimed that\\nthey required new counsel in order to preserve their objections under the Speedy Trial Act.\\nAnthony and Christopher followed up by filing motions for the substitution of counsel the day\\nbefore the trial was set to begin, claiming that they were being denied the effective assistance of\\ncounsel due their attorneys’ failure to raise their speedy-trial objections. At the same time,\\ncounsel for Anthony and Christopher each moved to withdraw, claiming that the state-bar\\ngrievances had created a conflict of interest between the attorneys and their clients.\\n\\n The district court conducted another hearing on the matter. Christopher testified during\\nthe hearing that he “asked [his attorney] to file [the motion to dismiss based on the speedy-trial\\nobjection] and [the attorney] didn’t file it, and that was [Christopher’s] issue with [his attorney].”\\nAnthony and Christopher both testified that their only complaint with their respective attorneys\\nwas that the attorneys did not further litigate the speedy-trial objections, which the district court\\nhad already overruled. In fact, Anthony testified that his attorney was otherwise “an excellent\\nattorney.”\\n\\n The district court found that there was no impairment in the defendants’ ability to\\neffectively work with their attorneys. Furthermore, the court repeated its conclusion that the\\nspeedy-trial objections had no merit. The court also noted that the state-bar grievances were\\n“100 percent frivolous” and contrived by the defendants in order to avoid trial. In addition, the\\ncourt concluded that counsel’s statements that their feelings had been hurt and that their pride\\nhad been wounded were nothing more than “theatrics.” The court ultimately determined that\\ncounsel had continued to work cooperatively and communicate extensively with their clients\\neven while these motions were pending. It therefore denied Anthony’s and Christopher’s\\nmotions to substitute new counsel and denied the attorneys’ motions to withdraw.\\n\\n Anthony and Christopher now argue that the state-bar grievances created a conflict of\\ninterest that caused them to be denied the effective assistance of counsel. The Supreme Court in\\nStrickland v. Washington, 466 U.S. 668 (1984), announced the standard for criminal defendants\\nclaiming ineffective assistance of counsel. “First, the defendant must show that counsel’s\\nperformance was deficient.” Id. at 687. Counsel’s performance is deficient when it “[falls]\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 13\\n\\n\\nbelow an objective standard of reasonableness.” Id. at 688. “Second, the defendant must show\\nthat the deficient performance prejudiced the defense.” Id. at 687.\\n\\n We use a modified version of the Strickland framework when the\\nineffective-assistance-of-counsel claim is based on an alleged conflict of interest. United States\\nv. Kilpatrick, 798 F.3d 365, 374–75 (6th Cir. 2015). Under this modified standard, a defendant\\nmust point to specific instances in the record and make a factual showing that the attorney and\\nthe defendant have inconsistent interests. Id. Proving a conflict of interest requires the\\ndefendant to show that his attorney had competing obligations and chose to favor one interest\\nover another, to the detriment of the representation of the defendant. Mickens v. Taylor,\\n535 U.S. 162, 171 (2002). More specifically, the defendant must show that his attorney’s\\nperformance was compromised as a result of a competing obligation. Id.\\n\\n Anthony and Christopher have failed to show that their attorneys had a conflict of interest\\nbecause the state-bar grievances did not create conflicting obligations. The district court found\\nthat the grievances were frivolous and that the defendants’ speedy-trial objections lacked merit.\\nClaims by the attorneys that their feelings were hurt are not enough to create a conflict of\\ninterest, and the court dismissed as hyperbole the attorneys’ assertions that they could not exert\\nthe “passion” necessary to represent their clients. The court also found that there was no real\\nbreakdown in the attorney-client relationship that prevented the attorneys from providing\\neffective assistance. Anthony and Christopher were both able to communicate with their\\nattorneys to assist them in preparing for trial.\\n\\n Furthermore, if the filing of state-bar grievances was in itself sufficient to create a\\nconflict of interest that would prevent attorneys from providing effective representation, then\\ncriminal defendants could habitually abuse this rule. Any defendant in a criminal case would be\\nable to manufacture a frivolous argument against his or her attorney, file a state-bar grievance,\\nand have the district court substitute new counsel. See United States v. Burns, 990 F.2d 1426,\\n1438 (4th Cir. 1993) (noting that a ruling for a defendant claiming ineffective assistance of\\ncounsel as a result of a meritless state-bar grievance “would invite criminal defendants anxious\\nto rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on\\nthe eve of trial”).\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 14\\n\\n\\n And even if the grievances in question here had merit, they did not create a conflict of\\ninterest because the grievances did not establish any competing obligations for the attorneys. If\\nanything, they aligned the attorneys’ interests with those of their clients and incentivized the\\nattorneys to work even harder. The attorneys must have recognized that if their clients were\\nconvicted at trial, the alleged failure to pursue the speedy-trial objections would be highlighted.\\nThey must have similarly recognized that an acquittal for their clients would render the\\ngrievances moot. See, e.g., United States v. Leggett, 81 F.3d 220, 227 (D.C. Cir. 1996) (“[A]n\\nattorney fearing an ineffective assistance of counsel claim has an incentive to do his best, not the\\ncontrary.”).\\n\\n Because we conclude that Anthony’s and Christopher’s state-bar grievances against their\\nattorneys did not create a conflict of interest, we need not address whether the alleged conflict\\ncompromised the attorneys’ representation of their clients. But, in short, we note that Anthony\\nand Christopher have failed to show that any of the alleged deficiencies by their attorneys were\\ncaused by what they deem to be a conflict of interest.\\n\\nD. There was no plain error with respect to duplicity in the indictment or the lack of a\\n specific unanimity jury instruction regarding the aggravated-identity-theft charges.\\n\\n Anthony’s next argument, joined by Sharon, challenges the aggravated-identity-theft\\ncounts in the indictment on duplicity grounds and challenges the aggravated-identity-theft jury\\ninstructions on unanimity grounds. First, Anthony argues that counts 38 and 41 of the\\nindictment are duplicitous because the government charged several discrete violations in each\\ncount. “An indictment is duplicitous if it sets forth separate and distinct crimes in one count.”\\nUnited States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) (quoting United States v. Davis, 306\\nF.3d 398, 415 (6th Cir. 2002)). Second, he argues that the district court failed to give a\\nunanimity jury instruction regarding the aggravated-identity-theft charges. These arguments\\nraise the same substantive issue, so we will address them together. See id. (“[T]he primary\\nconcern [with a duplicitous indictment] is that a defendant may be deprived of his right to a\\nunanimous jury verdict.”).\\n\\n Anthony and Sharon did not raise the duplicity challenge to the indictment before the\\ndistrict court. They also did not request a specific jury instruction on unanimity for the\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 15\\n\\n\\naggravated-identity-theft charges. We therefore review these arguments under the plain-error\\nstandard. Id. at 445 (“[W]hen a defendant raises a challenge to a duplicitous indictment for the\\nfirst time on appeal . . . [and w]here the defendant does not object to the district court’s\\ninstructions to the jury, review is limited to plain error.”). Under the plain-error standard, “we\\nmust consider whether there was plain error that affects substantial rights and that, in our\\ndiscretionary view, seriously affects the fundamental fairness, integrity, or public reputation of\\njudicial proceedings.” United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (citing\\nJohnson v. United States, 520 U.S. 461, 466 (1997)).\\n\\n Anthony argues that the indictment is duplicitous regarding counts 38 and 41, and that\\nthe jury instructions failed to cure this defect. Specifically, he contends that each of these counts\\nalleged more than one predicate offense and more than one victim. Count 38 refers to the\\nvictims as Individuals C and D—later identified as Rhonda Nolen and Holly Sochocki. And\\ncount 41 refers to the victims as Individuals H and I—later identified as Deshawntia Moorer and\\nKjuan Jones. Anthony relies primarily on United States v. Duncan, 850 F.2d 1104 (6th Cir.\\n1988), in support of his argument that the verdict must be unanimous regarding the predicate\\noffense and the victim.\\n\\n This court held in Duncan that a jury verdict must be unanimous as to which false\\nstatement violated 26 U.S.C. §§ 7206(1) and 7602(2), statutes that prohibit the making and\\npreparing of a tax return containing a materially false statement. Id. at 1113. We also held that\\nthe distinct court was required to use a specific unanimity jury instruction when faced with the\\ngenuine risk of a nonunanimous verdict. Id. at 1113–14. The problem with Duncan, however, is\\nthat this court in United States v. Schmeltz, 667 F.3d 685, 688 (6th Cir. 2011), noted that Duncan\\nhad been abrogated by Schad v. Arizona, 501 U.S. 624 (1991). In Schad, the Supreme Court\\nrecognized “a long-established rule of the criminal law that an indictment need not specify which\\novert act, among several named, was the means by which a crime was committed.” Id. at 631.\\n\\n The Court in Schad further noted as follows:\\n\\n We have never suggested that in returning general verdicts in such cases the\\n jurors should be required to agree upon a single means of commission, any more\\n than the indictments were required to specify one alone. In these cases, as in\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 16\\n\\n\\n litigation generally, “different jurors may be persuaded by different pieces of\\n evidence, even when they agree upon the bottom line. Plainly there is no general\\n requirement that the jury reach agreement on the preliminary factual issues which\\n underlie the verdict.\\n\\nId. at 631–32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,\\nconcurring) (footnotes omitted)). Because Duncan has been abrogated, Anthony has not pointed\\nto any binding precedent that establishes that each victim of identity theft must be the subject of\\na separate charge or that a jury verdict must be unanimous regarding the victim of identity theft.\\n\\n Furthermore, based on the evidence presented at trial, no reasonable juror could have\\nfound that Anthony and Sharon used the name and personal information of Rhonda Nolen but\\nnot of Holly Sochocki, or vice versa, because the two names were used together on the same\\ninstruments. The Form 1041 submitted for the Rhonda Nolen Trust, for instance, identified\\nHolly Sochocki as the trustee. And the refund check listed both Nolen and Sochocki.\\n\\n The same is true for count 41 regarding Deshawntia Moorer and Kjuan Jones. For the\\nDeshawntia Moorer Trust, the Form 1041 listed Deshawntia Moorer and Kjuan Jones on\\nsuccessive lines. And the refund check also listed both names. Because no reasonable juror\\ncould have found that one name was used but not the other, there was no risk of a nonunanimous\\nverdict regarding the multiple victims named in each count. See United States v. Kakos, 483\\nF.3d 441, 446 (6th Cir. 2007) (observing that, where the defendant was charged in a single count\\nwith knowingly receiving both a stolen trailer and the meat contained in the trailer, his argument\\nthat some jurors might have concluded that he knew only that the trailer was stolen, whereas\\nothers might have concluded that he knew only that the meat was stolen, was inconsistent with\\nthe evidence). Accordingly, there was no plain error on duplicity grounds regarding the\\nindictment naming multiple victims in counts 38 and 41, and the district court was not required\\nto issue a specific unanimity instruction on this issue.\\n\\n We will now address Anthony’s argument that the indictment was duplicitous because\\ncounts 38 and 41 listed multiple predicate felonies. Each count alleged that the crimes of\\naggravated identity theft were committed “during and in relation to the offenses of conspiracy to\\ncommit mail fraud and mail fraud.”\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 17\\n\\n\\n Even assuming that the district court erred in not providing a specific unanimity\\ninstruction for the aggravated-identity-theft counts regarding the predicate felonies, there was no\\nissue with respect to unanimity. The jury unanimously found both Anthony and Sharon guilty of\\nconspiracy to commit mail fraud, which was one of the predicate felonies for aggravated identity\\ntheft. Anthony was acquitted of the predicate substantive-mail-fraud offenses in counts 10, 14,\\n28, and 31. So we know from the verdict that the jury unanimously believed that the only\\npredicate offense that Anthony was guilty of is conspiracy to commit mail fraud.\\n\\n True enough, Sharon was convicted of the substantive-mail-fraud offenses in counts 10\\nand 28 for the Nolen Trust. But that does not present an issue regarding whether the jury’s\\nverdict was unanimous for the aggravated-identity-theft charges in counts 38 and 41 because the\\njury unanimously believed that Sharon committed the predicate offenses of both mail fraud and\\nconspiracy to commit mail fraud. We therefore have no concern that some jurors found Sharon\\nguilty of only the predicate offense of mail fraud, whereas others found her guilty of only the\\npredicate conspiracy offense. The jury found her guilty of both offenses. In sum, Anthony and\\nSharon were not “deprived of [their] right to a unanimous jury verdict.” See Kakos, 483 F.3d at\\n443.\\n\\nE. The district court did not commit plain error regarding its aiding-and-abetting jury\\n instruction for aggravated identity theft by not specifying that a defendant must\\n willfully cause another person to commit every element of aggravated identity theft.\\n\\n This brings us to the first of Anthony’s arguments, joined by Sharon, challenging the\\ndistrict court’s jury instruction regarding aiding-and-abetting liability. Anthony contends that the\\ncourt erred in its jury instruction because it did not specify that a defendant must have knowledge\\nthat another person would use a real identity-theft victim’s personal information.\\n\\n Specifically, Anthony argues that, under Rosemond v. United States, 572 U.S. 65 (2014),\\nthe district court must instruct the jury that aiding-and-abetting liability applies only if the\\ndefendant takes an affirmative act in furtherance of the underlying offense with the intent to\\nfacilitate that offense’s commission. See id. at 71, 76. The defendant, Anthony contends, must\\nhave knowledge that another person will commit each element of the crime in order to be found\\nguilty. See id.\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 18\\n\\n\\n Rosemond concerned aiding-and-abetting liability under 18 U.S.C. § 924(c), which\\ncriminalizes using a firearm “during and in relation to” a drug-trafficking crime or a crime of\\nviolence. The Supreme Court held that “intent must go to the specific and entire crime charged,”\\ni.e., “the full scope (predicate crime plus gun use) of § 924(c).” Id. at 76. Anthony argues that\\nthe same reasoning applies in the present case because aggravated identity theft under 18 U.S.C.\\n§ 1028A(a)(1) is also a compound crime that requires the commission of a criminal act—\\ntransferring, possessing, or using a means of identification of another person without lawful\\nauthority—“during and in relation to” a predicate offense. Applying the principles articulated in\\nRosemond to the present case, Anthony argues that the jury instructions improperly failed to\\nspecify that he could be found guilty of aiding and abetting only if he knew that another person\\nwould use a real identity-theft victim’s personal information.\\n\\n If an objection to a jury instruction was not preserved before the district court, we review\\nthe instruction under the plain-error standard, “considering whether ‘the instructions, when taken\\nas a whole, were so clearly wrong as to produce a grave miscarriage of justice.’” United States\\nv. Wood, 364 F.3d 704, 708 (6th Cir. 2004) (quoting United States v. Sanderson, 966 F.2d 184,\\n187 (6th Cir. 1992)). Anthony argues that his objection was preserved, but before the district\\ncourt he challenged only the sufficiency of the evidence to support an aiding-and-abetting\\ninstruction. That argument is raised again on appeal. See below, Part II.F. But none of the\\ndefendants argued before the district court that the aiding-and-abetting instruction itself was\\nlegally incorrect. Accordingly, we review the district court’s instruction under the plain-error\\nstandard.\\n\\n The district court instructed the jury on aiding-and-abetting liability for aggravated\\nidentity theft as follows:\\n\\n First, that the defendant caused any person to commit the act of knowingly using\\n without lawful authority a means of identification of another individual;\\n Second, if the defendant had committed the act, it would have been the crime of\\n Aggravated Identity Theft;\\n Third, that the defendant willfully caused the act to be done.\\n Proof that the defendant may have known about the crime, even if he or she was\\n there when it was committed, is not enough for you to find him or her guilty. You\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 19\\n\\n\\n may consider this in deciding whether the government has proved that he or she\\n caused the act to be done, but without more it is not enough. What the\\n government must prove is that the defendant willfully did something to cause the\\n act to be committed.\\n\\n The second element negates Anthony’s objection based on Rosemond because the district\\ncourt had already instructed the jury on the crime of aggravated identity theft using the proper\\nelements. Among those elements was the requirement “that the defendant knew the means of\\nidentification belonged to another person.” Accordingly, the jury instructions as a whole were\\nsufficiently clear that, in order for the jury to find Anthony or Sharon guilty of aggravated\\nidentity theft under an aiding-and-abetting theory of liability, it would have to find that he or she\\nwillfully caused another person to use someone else’s identification without lawful authority,\\nknowing that the identification used belonged to someone else. We thus find no plain error in\\nthe aiding-and-abetting jury instruction.\\n\\nF. Sufficient evidence justified the district court’s aiding-and-abetting jury instruction for\\n aggravated identity theft.\\n\\n This leads us to Anthony’s next argument, also joined by Sharon, challenging the\\nsufficiency of the evidence to support the district court’s aiding-and-abetting jury instruction.\\nThe government acknowledges that this objection was preserved, so we review the court’s\\ndecision to include the instruction under the abuse-of-discretion standard. United States v.\\nEaton, 784 F.3d 298, 306–07 (6th Cir. 2015). “Under this standard, we ‘review the instructions\\nas a whole, in order to determine whether they adequately informed the jury of the relevant\\nconsiderations and provided a basis in law for aiding the jury in reaching its decision.’” Id.\\n(quoting United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008)).\\n\\n Anthony argues that he had no role in the tax returns, the EIN numbers, or the trust\\ndocuments regarding the Rhonda Nolen and Deshawntia Moorer Trusts. But the evidence shows\\notherwise. For the Rhonda Nolen Trust, for instance, Anthony rented a P.O. Box in November\\n2012 and listed Nolen as an authorized recipient. That same day, somebody prepared a\\nfraudulent tax return for the trust using Nolen’s forged signature and sent the return to the IRS.\\nThe fraudulent return requested that a refund check be sent to the P.O. Box opened by Anthony.\\nAnthony went to the bank with Christopher when Christopher set up the bank account for the\\n\\f Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 20\\n\\n\\nNolen Trust. Then, when the check arrived in the P.O. Box rented by Anthony, Anthony and\\nChristopher took the check to the bank to deposit it into the account that they had opened.\\n\\n Anthony points out that the surveillance photo from the bank depicts him departing\\ncarrying a sheaf of papers, which he claims was a newspaper. But when somebody enters a bank\\nempty handed, opens a trust account, then leaves carrying a sheaf of papers, the most logical\\ninference is that these papers relate to the new account. A reasonable jury could conclude from\\nthese facts that Anthony either prepared the false return, forged Nolen’s signature, and mailed\\nthe return to the IRS himself, or that he caused another person to commit these acts. In sum, the\\ndistrict court did not abuse its discretion in deciding to use an aiding-and-abetting instruction\\nwith regard to count 38 because Anthony would be liable whether he prepared the false tax\\nreturn himself or whether he caused another to do so.\\n\\n Evidence in the record also supports the aiding-and-abetting instruction regarding count\\n41, the aggravated-identity-theft count relating to the Deshawntia Moorer Trust. As with the\\nRhonda Nolen Trust, Anthony procured the P.O. Box to which the refund check for the Moorer\\nTrust was sent. He recruited Poole to help with this task. The Moorer Trust designated Seay as\\nthe trustee, and she testified that Anthony and Christopher were responsible for her involvement\\nin the criminal scheme. Seay was accompanied by Christopher and Sharon when she took the\\ncheck bearing Moorer’s and Kjuan Jones’s names to the bank to deposit it. And she testified that\\nAnthony demanded that she make withdrawals from the account, with the money going to him.\\nA reasonable juror could find that one of the defendants caused somebody else to create and mail\\nthe fraudulent IRS return for the Moorer Trust. The district court therefore did not abuse its\\ndiscretion in instructing the jury on aiding-and-abetting liability under 18 U.S.C. § 2(b) for the\\ncount 41 aggravated-identity-theft charge.\\n\\n III. CONCLUSION\\n\\n For all of the reasons set forth above, we AFFIRM all aspects of the district court’s\\njudgment.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2488,"cells":{"id":{"kind":"number","value":4627448,"string":"4,627,448"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Michael LYNDE, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Lawrence Lynde"},"decision_date":{"kind":"string","value":"2019-06-07"},"docket_number":{"kind":"string","value":"18-3725"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Cook, Nalbandian, Murphy\", \"parties\": \"\", \"opinions\": [{\"author\": \"MURPHY, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0121p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-3725\\n v. │\\n │\\n │\\n LAWRENCE MICHAEL LYNDE, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Northern District of Ohio at Akron.\\n No. 5:17-cr-00429-1—Dan A. Polster, District Judge.\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Manuel B. Russ, Nashville, Tennessee, for Appellant. Danielle K. Angeli,\\nUNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n MURPHY, Circuit Judge. Section 2G2.2 of the Sentencing Guidelines increases the\\nrecommended sentence in child-pornography cases if the offense involves a minor under the age\\nof 12, the use of a computer, or other aggravating factors. This Guideline has repeatedly been\\nsubject to the criticism that its enhancements apply in most child-pornography cases and\\ngenerate unduly harsh sentences. Our court has just as repeatedly rebuffed claims that courts\\nmust decline to follow § 2G2.2 because it arose from too much democratic tinkering by Congress\\n\\f No. 18-3725 United States v. Lynde Page 2\\n\\n\\nand not enough empirical research by the Sentencing Commission. United States v.\\nCunningham, 669 F.3d 723, 733 (6th Cir. 2012). Lawrence Lynde, who pleaded guilty to a\\nchild-pornography offense, asks us to depart from our cases and reject § 2G2.2 because the\\nCommission added its expert voice to the criticism in a 2012 report to Congress. But just as this\\nreport cannot compel the legislative branch to depart from its policy choices about § 2G2.2’s\\ncontent, cf. United States v. Bistline, 665 F.3d 758, 761–64 (6th Cir. 2012), so too it cannot\\ncompel the judicial branch to depart from its legal judgment about § 2G2.2’s validity. We thus\\naffirm Lynde’s sentence.\\n\\n Before detailing our reasoning, we start with the facts. In October 2015, federal officials\\nreceived a tip from Canadian authorities that Lynde had been trading child pornography online.\\nAn investigation uncovered that he had exchanged 62 images with another individual on the\\nonline application “Kik” between October and December 2014. Executing a search warrant at\\nLynde’s home in December 2015, federal agents recovered 322 images and five videos of child\\npornography. The images showed, among other things, prepubescent minors, including toddlers,\\nengaged in genital-to-genital intercourse with adult males. Lynde ultimately pleaded guilty to\\nreceiving and distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2).\\n\\n The knowing receipt and distribution of child pornography carries a statutory minimum\\nof five years’ imprisonment and a statutory maximum of twenty years. 18 U.S.C. § 2252(b)(1).\\nThe Sentencing Guidelines assigned Lynde’s crime a base offense level of 22. U.S.S.G.\\n§ 2G2.2(a)(2) (2016). His presentence report applied five § 2G2.2 enhancements: (1) Lynde’s\\noffense involved children under 12, id. § 2G2.2(b)(2); (2) Lynde knowingly distributed child\\npornography, id. § 2G2.2(b)(3)(F); (3) the child pornography presented sadistic or masochistic\\nconduct and the sexual abuse of a toddler, id. § 2G2.2(b)(4); (4) Lynde had used a computer, id.\\n§ 2G2.2(b)(6); and (5) Lynde possessed over 600 images, id. § 2G2.2(b)(7)(D). (Under the\\nGuidelines commentary, every video is “considered to have 75 images.” Id. § 2G2.2, cmt.\\nn.6(B)(ii).) After reductions for acceptance of responsibility, Lynde’s total offense level was 34.\\nWith no criminal history, he faced a Guidelines range between 151 and 188 months.\\n\\n At sentencing, Lynde’s counsel objected to the § 2G2.2 enhancements. Counsel\\nconceded that they applied. But he described § 2G2.2 as “broken” because it produced harsh\\n\\f No. 18-3725 United States v. Lynde Page 3\\n\\n\\nsentences through enhancements that enlarge the punishment in most cases. Counsel also\\nhighlighted Lynde’s otherwise productive life and strong family support. A married father of\\nthree who provided care to his sick wife, Lynde served in the military and then began a career\\nservicing x-ray equipment, which occasionally took him overseas on charitable work. Lynde’s\\ncounsel thus requested the statutory minimum—a five-year sentence.\\n\\n The district court agreed that the presentence report correctly calculated the Guidelines\\nrange, but decided that a Guidelines sentence would be “longer than necessary” under 18 U.S.C.\\n§ 3553(a). It rejected the use-of-a-computer enhancement because the court had never presided\\nover a child-pornography case that did not involve a computer. It also decreased the offense\\nlevel because of Lynde’s family circumstances. All in all, its reductions reduced the Guidelines\\nrange to between 97 and 121 months. Because of Lynde’s “particularly exemplary life,” the\\ncourt settled on a 97-month sentence.\\n\\n We review this sentence “under a deferential abuse-of-discretion standard.” Gall v.\\nUnited States, 552 U.S. 38, 41 (2007). While a sentence must be both procedurally and\\nsubstantively reasonable, id. at 51–52, Lynde does not identify any procedural problems with his\\nsentence. He simply disputes the bottom-line number, arguing that his 97-month sentence is “too\\nlong.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Lynde presents wholesale\\nand retail challenges in support of this substantive argument: He broadly asserts that the district\\ncourt should have rejected the § 2G2.2 enhancements on policy grounds that would apply to\\nmost defendants, and he narrowly asserts that the district court wrongly balanced the § 3553(a)\\nfactors in his case.\\n\\n Wholesale Challenge. We typically start with an appellate presumption of\\nreasonableness if the district court imposes a sentence within the Guidelines range (or a sentence\\nbelow that range where, as here, the defendant is the one appealing). United States v. Curry, 536\\nF.3d 571, 573 (6th Cir. 2008). This “presumption reflects the fact that, by the time an appeals\\ncourt is considering a within-Guidelines sentence on review, both the sentencing judge and the\\nSentencing Commission will have reached the same conclusion as to the proper sentence in the\\nparticular case.” Rita v. United States, 551 U.S. 338, 347 (2007). And when a judge departs\\ndownward from the Guidelines range, “simple logic compels the conclusion” that a “defendant’s\\n\\f No. 18-3725 United States v. Lynde Page 4\\n\\n\\ntask of persuading us that the more lenient sentence . . . is unreasonably long is even more\\ndemanding.” Curry, 536 F.3d at 573. Flipping this logic on its head, Lynde argues that we\\nshould treat as unreasonable even a below-Guidelines sentence that relies on § 2G2.2’s\\nenhancements. That is so, Lynde claims, because those enhancements neither (1) arise from the\\nCommission’s careful study into the courts’ past sentencing practices nor (2) adequately\\ndistinguish among child-pornography offenders.\\n\\n We have not taken kindly to Lynde’s claim that § 2G2.2 deserves to be cast aside because\\nof its “purported lack of empirical grounding.” Cunningham, 669 F.3d at 733. His premise is\\ncorrect. Congress has actively policed § 2G2.2, so the Commission’s usual statistical methods\\nhave taken a backseat to Congress’s “desire to cast a wider criminal net[] and impose harsher\\npunishments.” United States v. McNerney, 636 F.3d 772, 775–76 (6th Cir. 2011). But Lynde’s\\nconclusion does not follow. To the contrary, Congress’s direct involvement is a “virtue, rather\\nthan [a] vice,” in a republic like ours because “[t]he Constitution is fundamentally a democratic\\ndocument, not a technocratic one.” Bistline, 665 F.3d at 762. If the representatives who are\\naccountable to the People reach “a retributive judgment that certain crimes are reprehensible and\\nwarrant serious punishment as a result,” the Commission cannot stand in their way. Id. at 764.\\n\\n We have also rejected Lynde’s claim that § 2G2.2’s enhancements must be disregarded\\nbecause they apply in most cases and do not adequately distinguish among offenders. See United\\nStates v. Walters, 775 F.3d 778, 786–87 (6th Cir. 2015). If “the harm [an enhancement]\\naddresses is real,” we have reasoned, “the enhancement is valid, no matter how often it applies.”\\nUnited States v. Lester, 688 F. App’x 351, 352 (6th Cir. 2017) (alteration in original) (citation\\nomitted). Here, Lynde does not dispute that real harms undergird two of the enhancements that\\nhe attacks—those for pornography involving children under 12, and for pornography that\\nincludes sadistic or masochistic conduct or the abuse of toddlers. U.S.S.G. § 2G2.2(b)(2), (b)(4).\\n(The phrase “res ipsa loquitur” comes to mind.) Rather, Lynde makes only the legally\\ninsufficient point that these enhancements arise frequently. See Lester, 688 F. App’x at 352;\\nWalters, 775 F.3d at 786–87. With respect to the enhancement for offenses involving “600 or\\nmore images,” U.S.S.G. § 2G2.2(b)(7)(D), Lynde does additionally argue that the commentary\\narbitrarily treats video clips as “75 images,” U.S.S.G. § 2G2.2, cmt. n.6(B)(ii). But one could\\n\\f No. 18-3725 United States v. Lynde Page 5\\n\\n\\nreasonably decide “that videos and movies” cause more harm and so “should be weighed much\\nmore heavily than photos or pictures.” United States v. Hanson, 693 F. App’x 521, 523 (9th Cir.\\n2017). (As a disclaimer, we note that Lynde does not dispute that this § 2G2.2 enhancement\\nfactually applies, so we do not address whether the commentary’s bright-line rule correctly\\ninterprets § 2G2.2(b)(7). Cf. United States v. Geerken, 506 F.3d 461, 464–66 (6th Cir. 2007).)\\n\\n To be sure, the Guidelines have been advisory since United States v. Booker, 543 U.S.\\n220 (2005). Thus, a district court may disagree with § 2G2.2’s enhancements “for policy\\nreasons, and may reject the Guidelines range based on that disagreement.” United States v.\\nBrooks, 628 F.3d 791, 799–800 (6th Cir. 2011). But a district court faces a “formidable task”\\nwhen it seeks to reject the policies underlying a Guideline, like § 2G2.2, that “comes bristling\\nwith Congress’s own empirical and value judgments.” Bistline, 665 F.3d at 764. If that is true, a\\ndistrict court cannot be said to have abused its discretion merely because it followed § 2G2.2\\n(and agreed with its policies). Cunningham, 669 F.3d at 733. As we have said, “‘the mere fact\\nthat a sentencing court has the discretion to disagree with the guidelines on policy grounds does\\nnot mean that it is required to do so’—and that is true no matter how persuasive an appellate\\ncourt finds the defendant’s policy arguments.” United States v. Souders, 747 F. App’x 269, 278\\n(6th Cir. 2018) (citation omitted).\\n\\n Even so, Lynde replies, the district court acted arbitrarily in this case by charting a\\nmiddle course: It declined to impose § 2G2.2’s use-of-a-computer enhancement on the ground\\nthat the enhancement applies in most cases, but refused to extend the same logic to the other\\nenhancements. Yet the broad discretion granted to district courts in sentencing means that they\\nneed not follow Lynde’s “‘in for a penny, in for a pound’ approach.” See Neder v. United States,\\n527 U.S. 1, 17 n.2 (1999). And a district court could reasonably conclude that the use of a\\ncomputer does not warrant extra punishment while also deciding that, for example, trading in\\nimages of toddler rape does. See United States v. Klepper, 520 F. App’x 392, 392–93 (6th Cir.\\n2013) (per curiam).\\n\\n Our existing precedent would fully rebut Lynde’s attack on § 2G2.2 but for a new turn\\nthat he takes. Lynde says that the Sentencing Commission itself “offered significant criticism of\\n[§ 2G2.2’s] enhancements” in a December 2012 report to Congress recommending changes. See\\n\\f No. 18-3725 United States v. Lynde Page 6\\n\\n\\nU.S. Sentencing Comm’n, Federal Child Pornography Offenses 322–25 (Dec. 2012). Does this\\nreport require us to reassess our cases upholding § 2G2.2’s general validity? No. That’s\\nanalogous to suggesting that Congress can compel the Supreme Court to depart from its\\nauthoritative interpretation of the law—not by amending the law through Article I’s\\nbicameralism and presentment process—but by issuing a congressional report critical of the\\ndecision. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–25 (1995); United States v.\\nWise, 370 U.S. 405, 411 (1962). Since Congress cannot supersede judicial interpretations in this\\nway, it should go without saying that the Commission—which has been described as “a sort of\\njunior-varsity Congress,” Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J.,\\ndissenting)—cannot either. See also Bistline, 665 F.3d at 761–62. And while the Commission\\nmay follow the prescribed process for amending the Guideline (or convince Congress to do so\\nfor subsections out of its control), see 28 U.S.C. § 994(p), Lynde concedes that neither Congress\\nnor the Commission has amended § 2G2.2 in response to this report.\\n\\n We are not alone in taking this view. Other circuits have held that the Commission’s\\n“report does not render the non-production child pornography guidelines in § 2G2.2 invalid or\\nillegitimate.” United States v. Cubero, 754 F.3d 888, 900 (11th Cir. 2014); United States v.\\nSigsbury, 817 F.3d 1114, 1115–16 (8th Cir. 2016); United States v. McLaughlin, 760 F.3d 699,\\n707–08 (7th Cir. 2014); cf. United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014). While\\n“Congress and the Commission are responsible for altering the Guidelines,” they have not done\\nso. Grigsby, 749 F.3d at 911. The report thus “does not change the statutory sentencing scheme,\\nthe applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit.”\\nCubero, 754 F.3d at 900. That said, a district court may consider the report’s policy concerns\\nwhen deciding whether to follow § 2G2.2’s enhancements. Id. If, however, the court opts to\\nadhere to § 2G2.2, the normal standards of appellate review apply. Id.\\n\\n In sum, notwithstanding the Commission’s report, a sentence does not become\\nunreasonable “because U.S.S.G. § 2G2.2 [is] involved.” Brooks, 628 F.3d at 799. Instead, a\\nsentence following this Guideline receives the same appellate presumption of reasonableness that\\napplies to a sentence following any other Guideline. See United States v. Wroten, 744 F. App’x\\n245, 249 (6th Cir. 2018).\\n\\f No. 18-3725 United States v. Lynde Page 7\\n\\n\\n Retail Challenge. Apart from his arguments against § 2G2.2, Lynde asserts that the\\ndistrict court arbitrarily applied the § 3553(a) factors to his case. Recall, however, that Lynde’s\\n97-month sentence fell well below the Guidelines range of 151 to 188 months’ imprisonment.\\n“Although it is not impossible to succeed on a substantive-reasonableness challenge to a below-\\nguidelines sentence, defendants who seek to do so bear a heavy burden.” United States v. Greco,\\n734 F.3d 441, 450 (6th Cir. 2013). Lynde has not met that burden here.\\n\\n Indeed, the district court thoroughly weighed § 3553(a)’s sentencing factors, factors that\\nit called “[t]he touchstone of sentencing.” It recognized the nature and severity of Lynde’s\\noffense, which causes “incalculable” and “devastating” harm to child victims. 18 U.S.C.\\n§ 3553(a)(1), (a)(2)(A). It acknowledged the need to deter this conduct and protect children,\\nrecognizing that the sentence must “affect and attack the demand side” of child pornography. Id.\\n§ 3553(a)(2)(B)–(C). It identified the Guidelines range, see id. § 3553(a)(4), and the criticisms\\n(like those that Lynde now presses) about the way that this range has been set. The court\\nlikewise considered Lynde’s personal characteristics. Id. § 3553(a)(1). It agreed that he had “led\\na particularly exemplary life” until this offense, and also reduced the sentence because of his\\nwife’s illness. These factors led it to settle on the lowest end of an adjusted Guidelines range.\\nThat sentence, the court concluded, accomplished the various purposes of sentencing. Id.\\n§ 3553(a)(2).\\n\\n Against all this, Lynde can only nitpick the district court’s reasoning. He says, for\\nexample, that the district court did not expressly address his “educational or vocational” needs.\\nId. § 3553(a)(2)(D). But that factor has little relevance to Lynde, an already skilled technician.\\nThe district court did not abuse its discretion by failing to make an “explicit[] reference” to it.\\nUnited States v. Morris, 448 F.3d 929, 932 (6th Cir. 2006).\\n\\n While conceding that the district court relied on various mitigating factors to reduce his\\nsentence, Lynde also asserts that it did not reduce the sentence enough. Lynde may feel that the\\ndistrict court’s already lenient sentence was not lenient enough, but its decision properly (not\\narbitrarily) balanced the relevant factors. In that respect, Lynde noticeably omits mentioning one\\nfactor—the one requiring the district court to consider “the need to avoid unwarranted sentence\\ndisparities.” 18 U.S.C. § 3553(a)(6). The greater the departure from the Guidelines range, the\\n\\f No. 18-3725 United States v. Lynde Page 8\\n\\n\\nmore this factor rises to the fore. See Bistline, 665 F.3d at 767. And here, the district court’s\\nsentence was already more than one-third shorter than the low end of the Guidelines range. The\\ndistrict court thus made a “reasoned and reasonable decision that the § 3553(a) factors, on the\\nwhole, justified the sentence.” Gall, 552 U.S. at 59–60.\\n\\n * * *\\n\\n Anyone who has reviewed the sentencing materials in this case—both the materials\\ndetailing the severe and lasting harm that child pornography causes its victims and those showing\\nthe effects of this conviction on Lynde and his family—would recognize that the district court\\nfaced a difficult decision. Our task as appellate judges is not to pick the sentence that we would\\nprefer (whether higher or lower), but only to ensure that the sentence chosen by the district court\\nfell within its broad range of reasoned discretion. On that, we are confident in the answer.\\n\\n We affirm.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4404701/\", \"author_raw\": \"MURPHY, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"COOK"},"judge2":{"kind":"string","value":"NALBANDIAN"},"judge3":{"kind":"string","value":"MURPHY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627448/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Michael LYNDE, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0121p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-3725\n v. │\n │\n │\n LAWRENCE MICHAEL LYNDE, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Northern District of Ohio at Akron.\n No. 5:17-cr-00429-1—Dan A. Polster, District Judge.\n\n Decided and Filed: June 7, 2019\n\n Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.\n _________________\n\n COUNSEL\n\nON BRIEF: Manuel B. Russ, Nashville, Tennessee, for Appellant. Danielle K. Angeli,\nUNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.\n _________________\n\n OPINION\n _________________\n\n MURPHY, Circuit Judge. Section 2G2.2 of the Sentencing Guidelines increases the\nrecommended sentence in child-pornography cases if the offense involves a minor under the age\nof 12, the use of a computer, or other aggravating factors. This Guideline has repeatedly been\nsubject to the criticism that its enhancements apply in most child-pornography cases and\ngenerate unduly harsh sentences. Our court has just as repeatedly rebuffed claims that courts\nmust decline to follow § 2G2.2 because it arose from too much democratic tinkering by Congress\n\f No. 18-3725 United States v. Lynde Page 2\n\n\nand not enough empirical research by the Sentencing Commission. United States v.\nCunningham, 669 F.3d 723, 733 (6th Cir. 2012). Lawrence Lynde, who pleaded guilty to a\nchild-pornography offense, asks us to depart from our cases and reject § 2G2.2 because the\nCommission added its expert voice to the criticism in a 2012 report to Congress. But just as this\nreport cannot compel the legislative branch to depart from its policy choices about § 2G2.2’s\ncontent, cf. United States v. Bistline, 665 F.3d 758, 761–64 (6th Cir. 2012), so too it cannot\ncompel the judicial branch to depart from its legal judgment about § 2G2.2’s validity. We thus\naffirm Lynde’s sentence.\n\n Before detailing our reasoning, we start with the facts. In October 2015, federal officials\nreceived a tip from Canadian authorities that Lynde had been trading child pornography online.\nAn investigation uncovered that he had exchanged 62 images with another individual on the\nonline application “Kik” between October and December 2014. Executing a search warrant at\nLynde’s home in December 2015, federal agents recovered 322 images and five videos of child\npornography. The images showed, among other things, prepubescent minors, including toddlers,\nengaged in genital-to-genital intercourse with adult males. Lynde ultimately pleaded guilty to\nreceiving and distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2).\n\n The knowing receipt and distribution of child pornography carries a statutory minimum\nof five years’ imprisonment and a statutory maximum of twenty years. 18 U.S.C. § 2252(b)(1).\nThe Sentencing Guidelines assigned Lynde’s crime a base offense level of 22. U.S.S.G.\n§ 2G2.2(a)(2) (2016). His presentence report applied five § 2G2.2 enhancements: (1) Lynde’s\noffense involved children under 12, id. § 2G2.2(b)(2); (2) Lynde knowingly distributed child\npornography, id. § 2G2.2(b)(3)(F); (3) the child pornography presented sadistic or masochistic\nconduct and the sexual abuse of a toddler, id. § 2G2.2(b)(4); (4) Lynde had used a computer, id.\n§ 2G2.2(b)(6); and (5) Lynde possessed over 600 images, id. § 2G2.2(b)(7)(D). (Under the\nGuidelines commentary, every video is “considered to have 75 images.” Id. § 2G2.2, cmt.\nn.6(B)(ii).) After reductions for acceptance of responsibility, Lynde’s total offense level was 34.\nWith no criminal history, he faced a Guidelines range between 151 and 188 months.\n\n At sentencing, Lynde’s counsel objected to the § 2G2.2 enhancements. Counsel\nconceded that they applied. But he described § 2G2.2 as “broken” because it produced harsh\n\f No. 18-3725 United States v. Lynde Page 3\n\n\nsentences through enhancements that enlarge the punishment in most cases. Counsel also\nhighlighted Lynde’s otherwise productive life and strong family support. A married father of\nthree who provided care to his sick wife, Lynde served in the military and then began a career\nservicing x-ray equipment, which occasionally took him overseas on charitable work. Lynde’s\ncounsel thus requested the statutory minimum—a five-year sentence.\n\n The district court agreed that the presentence report correctly calculated the Guidelines\nrange, but decided that a Guidelines sentence would be “longer than necessary” under 18 U.S.C.\n§ 3553(a). It rejected the use-of-a-computer enhancement because the court had never presided\nover a child-pornography case that did not involve a computer. It also decreased the offense\nlevel because of Lynde’s family circumstances. All in all, its reductions reduced the Guidelines\nrange to between 97 and 121 months. Because of Lynde’s “particularly exemplary life,” the\ncourt settled on a 97-month sentence.\n\n We review this sentence “under a deferential abuse-of-discretion standard.” Gall v.\nUnited States, 552 U.S. 38, 41 (2007). While a sentence must be both procedurally and\nsubstantively reasonable, id. at 51–52, Lynde does not identify any procedural problems with his\nsentence. He simply disputes the bottom-line number, arguing that his 97-month sentence is “too\nlong.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Lynde presents wholesale\nand retail challenges in support of this substantive argument: He broadly asserts that the district\ncourt should have rejected the § 2G2.2 enhancements on policy grounds that would apply to\nmost defendants, and he narrowly asserts that the district court wrongly balanced the § 3553(a)\nfactors in his case.\n\n Wholesale Challenge. We typically start with an appellate presumption of\nreasonableness if the district court imposes a sentence within the Guidelines range (or a sentence\nbelow that range where, as here, the defendant is the one appealing). United States v. Curry, 536\nF.3d 571, 573 (6th Cir. 2008). This “presumption reflects the fact that, by the time an appeals\ncourt is considering a within-Guidelines sentence on review, both the sentencing judge and the\nSentencing Commission will have reached the same conclusion as to the proper sentence in the\nparticular case.” Rita v. United States, 551 U.S. 338, 347 (2007). And when a judge departs\ndownward from the Guidelines range, “simple logic compels the conclusion” that a “defendant’s\n\f No. 18-3725 United States v. Lynde Page 4\n\n\ntask of persuading us that the more lenient sentence . . . is unreasonably long is even more\ndemanding.” Curry, 536 F.3d at 573. Flipping this logic on its head, Lynde argues that we\nshould treat as unreasonable even a below-Guidelines sentence that relies on § 2G2.2’s\nenhancements. That is so, Lynde claims, because those enhancements neither (1) arise from the\nCommission’s careful study into the courts’ past sentencing practices nor (2) adequately\ndistinguish among child-pornography offenders.\n\n We have not taken kindly to Lynde’s claim that § 2G2.2 deserves to be cast aside because\nof its “purported lack of empirical grounding.” Cunningham, 669 F.3d at 733. His premise is\ncorrect. Congress has actively policed § 2G2.2, so the Commission’s usual statistical methods\nhave taken a backseat to Congress’s “desire to cast a wider criminal net[] and impose harsher\npunishments.” United States v. McNerney, 636 F.3d 772, 775–76 (6th Cir. 2011). But Lynde’s\nconclusion does not follow. To the contrary, Congress’s direct involvement is a “virtue, rather\nthan [a] vice,” in a republic like ours because “[t]he Constitution is fundamentally a democratic\ndocument, not a technocratic one.” Bistline, 665 F.3d at 762. If the representatives who are\naccountable to the People reach “a retributive judgment that certain crimes are reprehensible and\nwarrant serious punishment as a result,” the Commission cannot stand in their way. Id. at 764.\n\n We have also rejected Lynde’s claim that § 2G2.2’s enhancements must be disregarded\nbecause they apply in most cases and do not adequately distinguish among offenders. See United\nStates v. Walters, 775 F.3d 778, 786–87 (6th Cir. 2015). If “the harm [an enhancement]\naddresses is real,” we have reasoned, “the enhancement is valid, no matter how often it applies.”\nUnited States v. Lester, 688 F. App’x 351, 352 (6th Cir. 2017) (alteration in original) (citation\nomitted). Here, Lynde does not dispute that real harms undergird two of the enhancements that\nhe attacks—those for pornography involving children under 12, and for pornography that\nincludes sadistic or masochistic conduct or the abuse of toddlers. U.S.S.G. § 2G2.2(b)(2), (b)(4).\n(The phrase “res ipsa loquitur” comes to mind.) Rather, Lynde makes only the legally\ninsufficient point that these enhancements arise frequently. See Lester, 688 F. App’x at 352;\nWalters, 775 F.3d at 786–87. With respect to the enhancement for offenses involving “600 or\nmore images,” U.S.S.G. § 2G2.2(b)(7)(D), Lynde does additionally argue that the commentary\narbitrarily treats video clips as “75 images,” U.S.S.G. § 2G2.2, cmt. n.6(B)(ii). But one could\n\f No. 18-3725 United States v. Lynde Page 5\n\n\nreasonably decide “that videos and movies” cause more harm and so “should be weighed much\nmore heavily than photos or pictures.” United States v. Hanson, 693 F. App’x 521, 523 (9th Cir.\n2017). (As a disclaimer, we note that Lynde does not dispute that this § 2G2.2 enhancement\nfactually applies, so we do not address whether the commentary’s bright-line rule correctly\ninterprets § 2G2.2(b)(7). Cf. United States v. Geerken, 506 F.3d 461, 464–66 (6th Cir. 2007).)\n\n To be sure, the Guidelines have been advisory since United States v. Booker, 543 U.S.\n220 (2005). Thus, a district court may disagree with § 2G2.2’s enhancements “for policy\nreasons, and may reject the Guidelines range based on that disagreement.” United States v.\nBrooks, 628 F.3d 791, 799–800 (6th Cir. 2011). But a district court faces a “formidable task”\nwhen it seeks to reject the policies underlying a Guideline, like § 2G2.2, that “comes bristling\nwith Congress’s own empirical and value judgments.” Bistline, 665 F.3d at 764. If that is true, a\ndistrict court cannot be said to have abused its discretion merely because it followed § 2G2.2\n(and agreed with its policies). Cunningham, 669 F.3d at 733. As we have said, “‘the mere fact\nthat a sentencing court has the discretion to disagree with the guidelines on policy grounds does\nnot mean that it is required to do so’—and that is true no matter how persuasive an appellate\ncourt finds the defendant’s policy arguments.” United States v. Souders, 747 F. App’x 269, 278\n(6th Cir. 2018) (citation omitted).\n\n Even so, Lynde replies, the district court acted arbitrarily in this case by charting a\nmiddle course: It declined to impose § 2G2.2’s use-of-a-computer enhancement on the ground\nthat the enhancement applies in most cases, but refused to extend the same logic to the other\nenhancements. Yet the broad discretion granted to district courts in sentencing means that they\nneed not follow Lynde’s “‘in for a penny, in for a pound’ approach.” See Neder v. United States,\n527 U.S. 1, 17 n.2 (1999). And a district court could reasonably conclude that the use of a\ncomputer does not warrant extra punishment while also deciding that, for example, trading in\nimages of toddler rape does. See United States v. Klepper, 520 F. App’x 392, 392–93 (6th Cir.\n2013) (per curiam).\n\n Our existing precedent would fully rebut Lynde’s attack on § 2G2.2 but for a new turn\nthat he takes. Lynde says that the Sentencing Commission itself “offered significant criticism of\n[§ 2G2.2’s] enhancements” in a December 2012 report to Congress recommending changes. See\n\f No. 18-3725 United States v. Lynde Page 6\n\n\nU.S. Sentencing Comm’n, Federal Child Pornography Offenses 322–25 (Dec. 2012). Does this\nreport require us to reassess our cases upholding § 2G2.2’s general validity? No. That’s\nanalogous to suggesting that Congress can compel the Supreme Court to depart from its\nauthoritative interpretation of the law—not by amending the law through Article I’s\nbicameralism and presentment process—but by issuing a congressional report critical of the\ndecision. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–25 (1995); United States v.\nWise, 370 U.S. 405, 411 (1962). Since Congress cannot supersede judicial interpretations in this\nway, it should go without saying that the Commission—which has been described as “a sort of\njunior-varsity Congress,” Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J.,\ndissenting)—cannot either. See also Bistline, 665 F.3d at 761–62. And while the Commission\nmay follow the prescribed process for amending the Guideline (or convince Congress to do so\nfor subsections out of its control), see 28 U.S.C. § 994(p), Lynde concedes that neither Congress\nnor the Commission has amended § 2G2.2 in response to this report.\n\n We are not alone in taking this view. Other circuits have held that the Commission’s\n“report does not render the non-production child pornography guidelines in § 2G2.2 invalid or\nillegitimate.” United States v. Cubero, 754 F.3d 888, 900 (11th Cir. 2014); United States v.\nSigsbury, 817 F.3d 1114, 1115–16 (8th Cir. 2016); United States v. McLaughlin, 760 F.3d 699,\n707–08 (7th Cir. 2014); cf. United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014). While\n“Congress and the Commission are responsible for altering the Guidelines,” they have not done\nso. Grigsby, 749 F.3d at 911. The report thus “does not change the statutory sentencing scheme,\nthe applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit.”\nCubero, 754 F.3d at 900. That said, a district court may consider the report’s policy concerns\nwhen deciding whether to follow § 2G2.2’s enhancements. Id. If, however, the court opts to\nadhere to § 2G2.2, the normal standards of appellate review apply. Id.\n\n In sum, notwithstanding the Commission’s report, a sentence does not become\nunreasonable “because U.S.S.G. § 2G2.2 [is] involved.” Brooks, 628 F.3d at 799. Instead, a\nsentence following this Guideline receives the same appellate presumption of reasonableness that\napplies to a sentence following any other Guideline. See United States v. Wroten, 744 F. App’x\n245, 249 (6th Cir. 2018).\n\f No. 18-3725 United States v. Lynde Page 7\n\n\n Retail Challenge. Apart from his arguments against § 2G2.2, Lynde asserts that the\ndistrict court arbitrarily applied the § 3553(a) factors to his case. Recall, however, that Lynde’s\n97-month sentence fell well below the Guidelines range of 151 to 188 months’ imprisonment.\n“Although it is not impossible to succeed on a substantive-reasonableness challenge to a below-\nguidelines sentence, defendants who seek to do so bear a heavy burden.” United States v. Greco,\n734 F.3d 441, 450 (6th Cir. 2013). Lynde has not met that burden here.\n\n Indeed, the district court thoroughly weighed § 3553(a)’s sentencing factors, factors that\nit called “[t]he touchstone of sentencing.” It recognized the nature and severity of Lynde’s\noffense, which causes “incalculable” and “devastating” harm to child victims. 18 U.S.C.\n§ 3553(a)(1), (a)(2)(A). It acknowledged the need to deter this conduct and protect children,\nrecognizing that the sentence must “affect and attack the demand side” of child pornography. Id.\n§ 3553(a)(2)(B)–(C). It identified the Guidelines range, see id. § 3553(a)(4), and the criticisms\n(like those that Lynde now presses) about the way that this range has been set. The court\nlikewise considered Lynde’s personal characteristics. Id. § 3553(a)(1). It agreed that he had “led\na particularly exemplary life” until this offense, and also reduced the sentence because of his\nwife’s illness. These factors led it to settle on the lowest end of an adjusted Guidelines range.\nThat sentence, the court concluded, accomplished the various purposes of sentencing. Id.\n§ 3553(a)(2).\n\n Against all this, Lynde can only nitpick the district court’s reasoning. He says, for\nexample, that the district court did not expressly address his “educational or vocational” needs.\nId. § 3553(a)(2)(D). But that factor has little relevance to Lynde, an already skilled technician.\nThe district court did not abuse its discretion by failing to make an “explicit[] reference” to it.\nUnited States v. Morris, 448 F.3d 929, 932 (6th Cir. 2006).\n\n While conceding that the district court relied on various mitigating factors to reduce his\nsentence, Lynde also asserts that it did not reduce the sentence enough. Lynde may feel that the\ndistrict court’s already lenient sentence was not lenient enough, but its decision properly (not\narbitrarily) balanced the relevant factors. In that respect, Lynde noticeably omits mentioning one\nfactor—the one requiring the district court to consider “the need to avoid unwarranted sentence\ndisparities.” 18 U.S.C. § 3553(a)(6). The greater the departure from the Guidelines range, the\n\f No. 18-3725 United States v. Lynde Page 8\n\n\nmore this factor rises to the fore. See Bistline, 665 F.3d at 767. And here, the district court’s\nsentence was already more than one-third shorter than the low end of the Guidelines range. The\ndistrict court thus made a “reasoned and reasonable decision that the § 3553(a) factors, on the\nwhole, justified the sentence.” Gall, 552 U.S. at 59–60.\n\n * * *\n\n Anyone who has reviewed the sentencing materials in this case—both the materials\ndetailing the severe and lasting harm that child pornography causes its victims and those showing\nthe effects of this conviction on Lynde and his family—would recognize that the district court\nfaced a difficult decision. Our task as appellate judges is not to pick the sentence that we would\nprefer (whether higher or lower), but only to ensure that the sentence chosen by the district court\nfell within its broad range of reasoned discretion. On that, we are confident in the answer.\n\n We affirm.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Michael LYNDE, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0121p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-3725\\n v. │\\n │\\n │\\n LAWRENCE MICHAEL LYNDE, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Northern District of Ohio at Akron.\\n No. 5:17-cr-00429-1—Dan A. Polster, District Judge.\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Manuel B. Russ, Nashville, Tennessee, for Appellant. Danielle K. Angeli,\\nUNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n MURPHY, Circuit Judge. Section 2G2.2 of the Sentencing Guidelines increases the\\nrecommended sentence in child-pornography cases if the offense involves a minor under the age\\nof 12, the use of a computer, or other aggravating factors. This Guideline has repeatedly been\\nsubject to the criticism that its enhancements apply in most child-pornography cases and\\ngenerate unduly harsh sentences. Our court has just as repeatedly rebuffed claims that courts\\nmust decline to follow § 2G2.2 because it arose from too much democratic tinkering by Congress\\n\\f No. 18-3725 United States v. Lynde Page 2\\n\\n\\nand not enough empirical research by the Sentencing Commission. United States v.\\nCunningham, 669 F.3d 723, 733 (6th Cir. 2012). Lawrence Lynde, who pleaded guilty to a\\nchild-pornography offense, asks us to depart from our cases and reject § 2G2.2 because the\\nCommission added its expert voice to the criticism in a 2012 report to Congress. But just as this\\nreport cannot compel the legislative branch to depart from its policy choices about § 2G2.2’s\\ncontent, cf. United States v. Bistline, 665 F.3d 758, 761–64 (6th Cir. 2012), so too it cannot\\ncompel the judicial branch to depart from its legal judgment about § 2G2.2’s validity. We thus\\naffirm Lynde’s sentence.\\n\\n Before detailing our reasoning, we start with the facts. In October 2015, federal officials\\nreceived a tip from Canadian authorities that Lynde had been trading child pornography online.\\nAn investigation uncovered that he had exchanged 62 images with another individual on the\\nonline application “Kik” between October and December 2014. Executing a search warrant at\\nLynde’s home in December 2015, federal agents recovered 322 images and five videos of child\\npornography. The images showed, among other things, prepubescent minors, including toddlers,\\nengaged in genital-to-genital intercourse with adult males. Lynde ultimately pleaded guilty to\\nreceiving and distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2).\\n\\n The knowing receipt and distribution of child pornography carries a statutory minimum\\nof five years’ imprisonment and a statutory maximum of twenty years. 18 U.S.C. § 2252(b)(1).\\nThe Sentencing Guidelines assigned Lynde’s crime a base offense level of 22. U.S.S.G.\\n§ 2G2.2(a)(2) (2016). His presentence report applied five § 2G2.2 enhancements: (1) Lynde’s\\noffense involved children under 12, id. § 2G2.2(b)(2); (2) Lynde knowingly distributed child\\npornography, id. § 2G2.2(b)(3)(F); (3) the child pornography presented sadistic or masochistic\\nconduct and the sexual abuse of a toddler, id. § 2G2.2(b)(4); (4) Lynde had used a computer, id.\\n§ 2G2.2(b)(6); and (5) Lynde possessed over 600 images, id. § 2G2.2(b)(7)(D). (Under the\\nGuidelines commentary, every video is “considered to have 75 images.” Id. § 2G2.2, cmt.\\nn.6(B)(ii).) After reductions for acceptance of responsibility, Lynde’s total offense level was 34.\\nWith no criminal history, he faced a Guidelines range between 151 and 188 months.\\n\\n At sentencing, Lynde’s counsel objected to the § 2G2.2 enhancements. Counsel\\nconceded that they applied. But he described § 2G2.2 as “broken” because it produced harsh\\n\\f No. 18-3725 United States v. Lynde Page 3\\n\\n\\nsentences through enhancements that enlarge the punishment in most cases. Counsel also\\nhighlighted Lynde’s otherwise productive life and strong family support. A married father of\\nthree who provided care to his sick wife, Lynde served in the military and then began a career\\nservicing x-ray equipment, which occasionally took him overseas on charitable work. Lynde’s\\ncounsel thus requested the statutory minimum—a five-year sentence.\\n\\n The district court agreed that the presentence report correctly calculated the Guidelines\\nrange, but decided that a Guidelines sentence would be “longer than necessary” under 18 U.S.C.\\n§ 3553(a). It rejected the use-of-a-computer enhancement because the court had never presided\\nover a child-pornography case that did not involve a computer. It also decreased the offense\\nlevel because of Lynde’s family circumstances. All in all, its reductions reduced the Guidelines\\nrange to between 97 and 121 months. Because of Lynde’s “particularly exemplary life,” the\\ncourt settled on a 97-month sentence.\\n\\n We review this sentence “under a deferential abuse-of-discretion standard.” Gall v.\\nUnited States, 552 U.S. 38, 41 (2007). While a sentence must be both procedurally and\\nsubstantively reasonable, id. at 51–52, Lynde does not identify any procedural problems with his\\nsentence. He simply disputes the bottom-line number, arguing that his 97-month sentence is “too\\nlong.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Lynde presents wholesale\\nand retail challenges in support of this substantive argument: He broadly asserts that the district\\ncourt should have rejected the § 2G2.2 enhancements on policy grounds that would apply to\\nmost defendants, and he narrowly asserts that the district court wrongly balanced the § 3553(a)\\nfactors in his case.\\n\\n Wholesale Challenge. We typically start with an appellate presumption of\\nreasonableness if the district court imposes a sentence within the Guidelines range (or a sentence\\nbelow that range where, as here, the defendant is the one appealing). United States v. Curry, 536\\nF.3d 571, 573 (6th Cir. 2008). This “presumption reflects the fact that, by the time an appeals\\ncourt is considering a within-Guidelines sentence on review, both the sentencing judge and the\\nSentencing Commission will have reached the same conclusion as to the proper sentence in the\\nparticular case.” Rita v. United States, 551 U.S. 338, 347 (2007). And when a judge departs\\ndownward from the Guidelines range, “simple logic compels the conclusion” that a “defendant’s\\n\\f No. 18-3725 United States v. Lynde Page 4\\n\\n\\ntask of persuading us that the more lenient sentence . . . is unreasonably long is even more\\ndemanding.” Curry, 536 F.3d at 573. Flipping this logic on its head, Lynde argues that we\\nshould treat as unreasonable even a below-Guidelines sentence that relies on § 2G2.2’s\\nenhancements. That is so, Lynde claims, because those enhancements neither (1) arise from the\\nCommission’s careful study into the courts’ past sentencing practices nor (2) adequately\\ndistinguish among child-pornography offenders.\\n\\n We have not taken kindly to Lynde’s claim that § 2G2.2 deserves to be cast aside because\\nof its “purported lack of empirical grounding.” Cunningham, 669 F.3d at 733. His premise is\\ncorrect. Congress has actively policed § 2G2.2, so the Commission’s usual statistical methods\\nhave taken a backseat to Congress’s “desire to cast a wider criminal net[] and impose harsher\\npunishments.” United States v. McNerney, 636 F.3d 772, 775–76 (6th Cir. 2011). But Lynde’s\\nconclusion does not follow. To the contrary, Congress’s direct involvement is a “virtue, rather\\nthan [a] vice,” in a republic like ours because “[t]he Constitution is fundamentally a democratic\\ndocument, not a technocratic one.” Bistline, 665 F.3d at 762. If the representatives who are\\naccountable to the People reach “a retributive judgment that certain crimes are reprehensible and\\nwarrant serious punishment as a result,” the Commission cannot stand in their way. Id. at 764.\\n\\n We have also rejected Lynde’s claim that § 2G2.2’s enhancements must be disregarded\\nbecause they apply in most cases and do not adequately distinguish among offenders. See United\\nStates v. Walters, 775 F.3d 778, 786–87 (6th Cir. 2015). If “the harm [an enhancement]\\naddresses is real,” we have reasoned, “the enhancement is valid, no matter how often it applies.”\\nUnited States v. Lester, 688 F. App’x 351, 352 (6th Cir. 2017) (alteration in original) (citation\\nomitted). Here, Lynde does not dispute that real harms undergird two of the enhancements that\\nhe attacks—those for pornography involving children under 12, and for pornography that\\nincludes sadistic or masochistic conduct or the abuse of toddlers. U.S.S.G. § 2G2.2(b)(2), (b)(4).\\n(The phrase “res ipsa loquitur” comes to mind.) Rather, Lynde makes only the legally\\ninsufficient point that these enhancements arise frequently. See Lester, 688 F. App’x at 352;\\nWalters, 775 F.3d at 786–87. With respect to the enhancement for offenses involving “600 or\\nmore images,” U.S.S.G. § 2G2.2(b)(7)(D), Lynde does additionally argue that the commentary\\narbitrarily treats video clips as “75 images,” U.S.S.G. § 2G2.2, cmt. n.6(B)(ii). But one could\\n\\f No. 18-3725 United States v. Lynde Page 5\\n\\n\\nreasonably decide “that videos and movies” cause more harm and so “should be weighed much\\nmore heavily than photos or pictures.” United States v. Hanson, 693 F. App’x 521, 523 (9th Cir.\\n2017). (As a disclaimer, we note that Lynde does not dispute that this § 2G2.2 enhancement\\nfactually applies, so we do not address whether the commentary’s bright-line rule correctly\\ninterprets § 2G2.2(b)(7). Cf. United States v. Geerken, 506 F.3d 461, 464–66 (6th Cir. 2007).)\\n\\n To be sure, the Guidelines have been advisory since United States v. Booker, 543 U.S.\\n220 (2005). Thus, a district court may disagree with § 2G2.2’s enhancements “for policy\\nreasons, and may reject the Guidelines range based on that disagreement.” United States v.\\nBrooks, 628 F.3d 791, 799–800 (6th Cir. 2011). But a district court faces a “formidable task”\\nwhen it seeks to reject the policies underlying a Guideline, like § 2G2.2, that “comes bristling\\nwith Congress’s own empirical and value judgments.” Bistline, 665 F.3d at 764. If that is true, a\\ndistrict court cannot be said to have abused its discretion merely because it followed § 2G2.2\\n(and agreed with its policies). Cunningham, 669 F.3d at 733. As we have said, “‘the mere fact\\nthat a sentencing court has the discretion to disagree with the guidelines on policy grounds does\\nnot mean that it is required to do so’—and that is true no matter how persuasive an appellate\\ncourt finds the defendant’s policy arguments.” United States v. Souders, 747 F. App’x 269, 278\\n(6th Cir. 2018) (citation omitted).\\n\\n Even so, Lynde replies, the district court acted arbitrarily in this case by charting a\\nmiddle course: It declined to impose § 2G2.2’s use-of-a-computer enhancement on the ground\\nthat the enhancement applies in most cases, but refused to extend the same logic to the other\\nenhancements. Yet the broad discretion granted to district courts in sentencing means that they\\nneed not follow Lynde’s “‘in for a penny, in for a pound’ approach.” See Neder v. United States,\\n527 U.S. 1, 17 n.2 (1999). And a district court could reasonably conclude that the use of a\\ncomputer does not warrant extra punishment while also deciding that, for example, trading in\\nimages of toddler rape does. See United States v. Klepper, 520 F. App’x 392, 392–93 (6th Cir.\\n2013) (per curiam).\\n\\n Our existing precedent would fully rebut Lynde’s attack on § 2G2.2 but for a new turn\\nthat he takes. Lynde says that the Sentencing Commission itself “offered significant criticism of\\n[§ 2G2.2’s] enhancements” in a December 2012 report to Congress recommending changes. See\\n\\f No. 18-3725 United States v. Lynde Page 6\\n\\n\\nU.S. Sentencing Comm’n, Federal Child Pornography Offenses 322–25 (Dec. 2012). Does this\\nreport require us to reassess our cases upholding § 2G2.2’s general validity? No. That’s\\nanalogous to suggesting that Congress can compel the Supreme Court to depart from its\\nauthoritative interpretation of the law—not by amending the law through Article I’s\\nbicameralism and presentment process—but by issuing a congressional report critical of the\\ndecision. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–25 (1995); United States v.\\nWise, 370 U.S. 405, 411 (1962). Since Congress cannot supersede judicial interpretations in this\\nway, it should go without saying that the Commission—which has been described as “a sort of\\njunior-varsity Congress,” Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J.,\\ndissenting)—cannot either. See also Bistline, 665 F.3d at 761–62. And while the Commission\\nmay follow the prescribed process for amending the Guideline (or convince Congress to do so\\nfor subsections out of its control), see 28 U.S.C. § 994(p), Lynde concedes that neither Congress\\nnor the Commission has amended § 2G2.2 in response to this report.\\n\\n We are not alone in taking this view. Other circuits have held that the Commission’s\\n“report does not render the non-production child pornography guidelines in § 2G2.2 invalid or\\nillegitimate.” United States v. Cubero, 754 F.3d 888, 900 (11th Cir. 2014); United States v.\\nSigsbury, 817 F.3d 1114, 1115–16 (8th Cir. 2016); United States v. McLaughlin, 760 F.3d 699,\\n707–08 (7th Cir. 2014); cf. United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014). While\\n“Congress and the Commission are responsible for altering the Guidelines,” they have not done\\nso. Grigsby, 749 F.3d at 911. The report thus “does not change the statutory sentencing scheme,\\nthe applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit.”\\nCubero, 754 F.3d at 900. That said, a district court may consider the report’s policy concerns\\nwhen deciding whether to follow § 2G2.2’s enhancements. Id. If, however, the court opts to\\nadhere to § 2G2.2, the normal standards of appellate review apply. Id.\\n\\n In sum, notwithstanding the Commission’s report, a sentence does not become\\nunreasonable “because U.S.S.G. § 2G2.2 [is] involved.” Brooks, 628 F.3d at 799. Instead, a\\nsentence following this Guideline receives the same appellate presumption of reasonableness that\\napplies to a sentence following any other Guideline. See United States v. Wroten, 744 F. App’x\\n245, 249 (6th Cir. 2018).\\n\\f No. 18-3725 United States v. Lynde Page 7\\n\\n\\n Retail Challenge. Apart from his arguments against § 2G2.2, Lynde asserts that the\\ndistrict court arbitrarily applied the § 3553(a) factors to his case. Recall, however, that Lynde’s\\n97-month sentence fell well below the Guidelines range of 151 to 188 months’ imprisonment.\\n“Although it is not impossible to succeed on a substantive-reasonableness challenge to a below-\\nguidelines sentence, defendants who seek to do so bear a heavy burden.” United States v. Greco,\\n734 F.3d 441, 450 (6th Cir. 2013). Lynde has not met that burden here.\\n\\n Indeed, the district court thoroughly weighed § 3553(a)’s sentencing factors, factors that\\nit called “[t]he touchstone of sentencing.” It recognized the nature and severity of Lynde’s\\noffense, which causes “incalculable” and “devastating” harm to child victims. 18 U.S.C.\\n§ 3553(a)(1), (a)(2)(A). It acknowledged the need to deter this conduct and protect children,\\nrecognizing that the sentence must “affect and attack the demand side” of child pornography. Id.\\n§ 3553(a)(2)(B)–(C). It identified the Guidelines range, see id. § 3553(a)(4), and the criticisms\\n(like those that Lynde now presses) about the way that this range has been set. The court\\nlikewise considered Lynde’s personal characteristics. Id. § 3553(a)(1). It agreed that he had “led\\na particularly exemplary life” until this offense, and also reduced the sentence because of his\\nwife’s illness. These factors led it to settle on the lowest end of an adjusted Guidelines range.\\nThat sentence, the court concluded, accomplished the various purposes of sentencing. Id.\\n§ 3553(a)(2).\\n\\n Against all this, Lynde can only nitpick the district court’s reasoning. He says, for\\nexample, that the district court did not expressly address his “educational or vocational” needs.\\nId. § 3553(a)(2)(D). But that factor has little relevance to Lynde, an already skilled technician.\\nThe district court did not abuse its discretion by failing to make an “explicit[] reference” to it.\\nUnited States v. Morris, 448 F.3d 929, 932 (6th Cir. 2006).\\n\\n While conceding that the district court relied on various mitigating factors to reduce his\\nsentence, Lynde also asserts that it did not reduce the sentence enough. Lynde may feel that the\\ndistrict court’s already lenient sentence was not lenient enough, but its decision properly (not\\narbitrarily) balanced the relevant factors. In that respect, Lynde noticeably omits mentioning one\\nfactor—the one requiring the district court to consider “the need to avoid unwarranted sentence\\ndisparities.” 18 U.S.C. § 3553(a)(6). The greater the departure from the Guidelines range, the\\n\\f No. 18-3725 United States v. Lynde Page 8\\n\\n\\nmore this factor rises to the fore. See Bistline, 665 F.3d at 767. And here, the district court’s\\nsentence was already more than one-third shorter than the low end of the Guidelines range. The\\ndistrict court thus made a “reasoned and reasonable decision that the § 3553(a) factors, on the\\nwhole, justified the sentence.” Gall, 552 U.S. at 59–60.\\n\\n * * *\\n\\n Anyone who has reviewed the sentencing materials in this case—both the materials\\ndetailing the severe and lasting harm that child pornography causes its victims and those showing\\nthe effects of this conviction on Lynde and his family—would recognize that the district court\\nfaced a difficult decision. Our task as appellate judges is not to pick the sentence that we would\\nprefer (whether higher or lower), but only to ensure that the sentence chosen by the district court\\nfell within its broad range of reasoned discretion. On that, we are confident in the answer.\\n\\n We affirm.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2489,"cells":{"id":{"kind":"number","value":4627449,"string":"4,627,449"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Damion D. FAULKNER, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Damion Faulkner"},"decision_date":{"kind":"string","value":"2019-06-07"},"docket_number":{"kind":"string","value":"18-5867"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Suhrheinrich, Bush, Readler\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHAD A. READLER, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0120p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-5867\\n v. │\\n │\\n │\\n DAMION D. FAULKNER, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Middle District of Tennessee at Nashville.\\n No. 3:15-cr-00101-1—Waverly D. Crenshaw, Jr., District Judge.\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for\\nAppellant. S. Carran Daughtrey, UNITED STATES ATTORNEY’S OFFICE, Nashville,\\nTennessee, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n CHAD A. READLER, Circuit Judge. A fifteen-count indictment charged Damion\\nFaulkner with a host of child-pornography-related offenses. Following his guilty plea to each\\ncount of the indictment, Faulkner was sentenced to 570 months in prison.\\n\\f No. 18-5867 United States v. Faulkner Page 2\\n\\n\\n On appeal, Faulkner argues that the United States Sentencing Guidelines required the\\ndistrict court to “group” together at sentencing his respective charges for production and\\nattempted production of child pornography (Counts 1 and 2), which would have resulted in a\\nlower offense level for purposes of calculating Faulkner’s Guidelines range. Faulkner also\\nchallenges his sentence as both substantively and procedurally unreasonable. We reject each of\\nhis arguments and AFFIRM the judgment of the district court.\\n\\n I. BACKGROUND\\n\\n From childhood on, Damion Faulkner’s life was plagued by sexual misconduct.\\nA stepbrother sexually abused Faulkner when he was nine years old. And Faulkner’s father was\\nconvicted and classified as a sex offender for filming Faulkner’s thirteen-year-old stepsister\\nwhile she was showering. Tragically, Faulkner would mirror this misconduct as an adult.\\n\\n For a time, Faulkner overcame his challenging upbringing, graduating high school and\\nenlisting in the United States Navy, where he served his country for two years before being\\ndischarged under honorable conditions. Upon his discharge, Faulkner went to live with his\\nbrother’s family in Donelson, Tennessee.\\n\\n But in the years that followed, Faulkner’s life would take a downward turn. He would\\nhave run-ins with the law, including convictions for shoplifting and drunk driving. And far\\nworse than that, Faulkner began to act upon his long-harbored sexual attraction to young girls.\\n\\n A. Faulkner Engages In Sexual Misconduct With Minors.\\n\\n While residing with his brother, his brother’s wife, and their five-year-old daughter, M.F.,\\nFaulkner touched M.F.’s groin on several occasions. M.F. told her parents about the incidents,\\nbut Faulkner denied the accusations, and no report was made to law enforcement.\\n\\n Faulkner returned to his abusive ways a few years later. M.F., now eleven, along with\\nher maternal half-sister, five-year-old O.B., were staying with M.F.’s father and Faulkner over a\\nsummer weekend. On the first night of the girls’ stay, Faulkner snuck into O.B.’s room as she\\nslept, pulled aside her shorts and underwear, and touched her bare vaginal area, recording the\\nincident on his phone, both by photograph and video.\\n\\f No. 18-5867 United States v. Faulkner Page 3\\n\\n\\n A separate incident took place the following day. This time, Faulkner took photographs\\nas O.B. (wearing a bathing suit) and M.F. (wearing a sun dress) sat together. Though the girls\\nwere fully clothed, many of the photographs focused on the girls’ genital areas or had other\\nsexual overtones.\\n\\n Faulkner circulated the images he captured to at least ten other like-minded individuals,\\nwith hopes of receiving similar images in return. With one of these individuals, he shared lurid\\nadvice about how to make sexual advances on prepubescent girls: “[J]ust get her alone and kiss\\nher the worsed [sic] she can do is say no and if she does that’s [sic] its tell her u want to make\\nher a woman.” To another individual, Faulkner described his previous “relationship” with M.F.,\\nexplaining that she had reported the repeated abuse to no avail. And to yet another, Faulkner\\nclaimed to have taken additional photographs of M.F. that were lost when his phone stopped\\nworking.\\n\\n For Faulkner, one criminal act led to another. In addition to recording illegal\\npornographic images of children, Faulkner also illegally amassed a large collection of\\npornographic images and videos of other child victims. Over time, Faulkner collected more than\\n3,500 images, the worst of which depicted the brutal rape and sexual mutilation of prepubescent\\nminors.\\n\\n Law enforcement ultimately caught up with Faulkner. In January 2014, officers in\\nTennessee executed a search warrant at the home of Faulkner’s brother, where Faulkner was still\\nresiding. The officers discovered an extensive collection of child pornography on Faulkner’s\\nphone and computer. During the search, Faulkner confessed to capturing pornographic\\nphotographs and video of O.B. as she slept in 2013, as well as to molesting M.F. in 2006.\\n\\n B. Faulkner Is Indicted On Child Pornography Charges And Initially\\n Sentenced To 55 Years Imprisonment.\\n\\n Faulkner was indicted on July 15, 2015, and a superseding indictment was filed the\\nfollowing June. It charged Faulkner with four types of child-pornography-related offenses:\\n\\f No. 18-5867 United States v. Faulkner Page 4\\n\\n\\n • Production and attempted production of child pornography under 18 U.S.C.\\n §§ 2251(a) & (d) (Counts 1 and 2);\\n • Attempted transportation and transportation of child pornography under 18 U.S.C.\\n §§ 2252A(a)(1) & (b) (Counts 3 through 13);\\n • Receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) (Count 14); and\\n • Possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) (Count 15).\\n\\nFaulkner pleaded guilty to all fifteen counts.\\n\\n Based upon that plea, the Presentence Report calculated Faulkner’s offense level as 44.\\nIt was subsequently reduced to 43 pursuant to U.S.S.G. § 5A n.2, which states that offense levels\\nabove 43 are to be reduced to 43, the highest level recognized by the Guidelines. With respect to\\nhis criminal history calculation, Faulkner was assigned category II, having been assessed one\\ncriminal history point for each of his two prior convictions, one for shoplifting and another for\\ndrunk driving. But in view of the maximum offense level of 43 assessed to Faulkner, the\\nGuidelines recommended a life sentence regardless of his criminal history category. U.S.S.G.\\n§ 5A.\\n\\n Seeking to lower his Guidelines calculation, Faulkner asked the district court to apply\\nU.S.S.G. § 3D1.2, which requires that “closely related counts” be “grouped together into a single\\ngroup” for purposes of sentencing. Faulkner argued that Counts 1 and 2—for production and\\nattempted production of child pornography, respectively—were closely related and thus should\\nbe grouped at sentencing because they addressed conduct that caused the same composite harm.\\nGrouping these two Counts would have reduced Faulkner’s offense level from 43 to 41, resulting\\nin a Guidelines range reduction from life imprisonment to 360 months to life imprisonment.\\nU.S.S.G. § 5A.\\n\\n The district court rejected Faulkner’s request. It did so on the basis that the attempted\\nproduction of child pornography offense resulted in a harm different than the production offense,\\nas the attempted production offense took place on a different day, in a different setting, and\\ninvolved a second victim. The district court nonetheless noted that it would take account of\\nFaulkner’s argument again when assessing the 18 U.S.C. § 3553(a) factors.\\n\\f No. 18-5867 United States v. Faulkner Page 5\\n\\n\\n When it turned to those factors, the district court first highlighted the reprehensible nature\\nof Faulkner’s conduct and the strong need for general and specific deterrence in the child\\npornography context. By the same token, it characterized Faulkner’s criminal history as “thin.”\\nThe district court also cited testimony from Faulkner’s family members, who asked for leniency,\\nand from Vanderbilt University Psychologist Dr. Kimberly Brown, who testified that Faulkner’s\\nrisk of reoffending was relatively low according to actuarial data. Taking all of this into account,\\nthe district court sentenced Faulkner to 25 years on Count 1, 15 years on Count 2 (the mandatory\\nminimum), 15 years on Counts 3 through 13, 7.5 years on Count 14, and 7.5 years on Count 15.\\nCounts 1, 3, 14, and 15 were to run consecutively, resulting in a total sentence of 55 years.\\n\\n C. Following A Successful Appeal, Faulkner’s Sentence Was Reduced To 47.5 Years.\\n\\n Faulkner appealed his sentence to this Court. In that appeal, one argument stood above\\nthe rest: That Faulkner’s sentences on Counts 14 (downloading child pornography) and 15\\n(possessing child pornography) violated the Fifth Amendment’s Double Jeopardy Clause\\nbecause they involved downloading and then possessing the same images. We remanded the\\ncase for further factual development with respect to the Double Jeopardy issue and accordingly\\ndeclined to reach Faulkner’s other challenges, awaiting resolution of the remanded proceeding.\\nSee United States v. Faulkner, 730 F. App’x. 325, 330 (6th Cir. 2018).\\n\\n On remand, the government agreed with Faulkner that his sentences on Counts 14 and 15\\nshould run concurrently rather than consecutively. The district court entered an order reflecting\\nthat agreement, reducing Faulkner’s sentence to 47.5 years and rendering his Double Jeopardy\\nchallenge moot. The final judgment was amended to reflect the new sentence. Faulkner then\\nfiled this timely appeal for review of his remaining arguments.\\n\\n II. ANALYSIS\\n\\n A. The District Court Properly Rejected Faulkner’s Request To Group\\n Counts 1 and 2.\\n\\n Was Faulkner’s sentence unjustifiably lengthened by the district court’s refusal to group\\nhis production and attempted production of child pornography charges? Faulkner says that it\\nwas, citing U.S.S.G. § 3D1.2 for support. We disagree.\\n\\f No. 18-5867 United States v. Faulkner Page 6\\n\\n\\n Our analytical starting point is the terms of the Guidelines. Section 3D1.2 provides that\\n“[a]ll counts involving substantially the same harm shall be grouped together into a single\\nGroup.” The Guideline goes on to identify four instances in which counts in an indictment will\\nbe considered to “involve substantially the same harm,” making them eligible for grouping.\\nU.S.S.G. § 3D1.2; see also United States v. Bivens, 811 F.3d 840, 842 (6th Cir. 2016). Those\\ninstances are defined in subsections (a)–(d) of the Guideline. See U.S.S.G. §§ 3D1.2(a)–(d).\\n\\n We understand Faulkner to be relying exclusively on subsection (b), the lone subsection\\nhe invoked below. Arguments based upon other subsections are likely forfeited, see Scottsdale\\nIns. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008), and would be unlikely to prevail in any\\nevent. Subsection (a) applies to counts involving the “same act or transaction.” Faulkner’s\\noffenses, however, occurred over separate days and involved different factual settings. In other\\nwords, they were different acts or transactions. Subsection (c) applies where an additionally\\ncharged offense is already accounted for under the Guideline section governing the principal\\noffense. That subsection applies when, for example, a defendant is separately charged with\\nmanufacturing methamphetamine and reckless endangerment of children. If the section\\ngoverning the manufacturing charge (the charge carrying the higher base offense level) provides\\nfor a two-level enhancement when the conduct endangered the lives of children, the two charges\\nare grouped under subsection (c). See United States v. Eversole, 487 F.3d 1024, 1032 (6th Cir.\\n2007). Finally, subsection (d) applies when a defendant’s “offense level is determined largely on\\nthe basis of the total amount of harm or loss . . . or some other measure of aggregate harm.”\\nEmblematic examples include property and drug crimes. See § 3D1.2 cmt n.6. We need not\\ndetermine whether the production of child pornography is similarly emblematic, because the\\nSentencing Commission has given us a more specific direction. It excluded from the scope of\\nsubsection (d) violations of 18 U.S.C. § 2251(a) involving the production of child pornography.\\nSee U.S.S.G. §§ 2G2.1, 3D1.2(d). Faulkner’s Count 1 is thus ineligible for grouping under\\nsubsection (d). See United States v. Settle, 414 F.3d 629, 632 n.2 (6th Cir. 2005) (noting that\\nprovisions dependent on the grouping rules do not operate unless both substantive offenses are\\neligible for grouping).\\n\\f No. 18-5867 United States v. Faulkner Page 7\\n\\n\\n Turning then to section § 3D1.2(b), we are instructed that, for purposes of sentencing,\\ncounts should be deemed to “involve substantially the same harm” when they “involve the same\\nvictim and two or more acts or transactions connected by a common criminal objective or\\nconstituting part of a common scheme or plan.” The Guidelines offer some examples of when\\ncounts “involve substantially the same harm.” Counts for conspiracy to commit extortion and\\nthe completed extortion do; counts for robbing the same person on different occasions do not.\\nNor do counts for raping the same victim on different days. See § 3D1.2 cmt n.4; Bivens,\\n811 F.3d at 842.\\n\\n Applying these principles in the context of child pornography, we held in Bivens that\\nseparate instances of photographing the same minor should not be grouped under subsection (b).\\nBivens, 811 F.3d at 843. That was so, we observed, because “[e]ven if the same act is repeated\\nduring an ongoing, continuous pattern of criminality between a single defendant and his victim,\\neach act usually amounts to a fresh harm the victim must face.” Id. (collecting cases).\\n\\n Were Faulkner seeking to group multiple counts for completed child pornography\\noffenses, he concedes that Bivens would control here. But Faulkner says his case is “unique”\\n(and thus not controlled by Bivens) because Count 2 was merely an attempted offense, not a\\ncompleted one. It follows, says Faulkner, that the two episodes caused the same composite\\nharm: Whatever harm O.B. experienced from the lascivious photos Faulkner took on day 1, she\\nsuffered no distinct harm from his attempt to take lascivious photographs of her on day 2. And\\nM.F., Faulkner argues, was not harmed by either incident.\\n\\n We see no distinction between this case and Bivens simply because one count at issue\\ninvolves attempting to produce child pornography. That attempt caused harm in every fair sense\\nof the word. Start with the harm to the children involved. Faulkner took photographs of O.B.\\n(wearing a bathing suit) and M.F. (wearing a sundress) that he intended to be lascivious in\\nnature. He then sent those photographs to others via email. These photographs likely have been\\nexchanged many times over by the individuals who received them. That conduct harmed these\\nchildren in a way distinct from the harm caused by Faulkner’s production of more revealing\\nphotographs the day before. And it is a harm, sadly, that may be relived for years to come,\\n\\f No. 18-5867 United States v. Faulkner Page 8\\n\\n\\nshould these images continue to circulate on the internet. See New York v. Ferber, 458 U.S. 747,\\n759 n.10 (1982); see also United States v. Bistline, 665 F.3d 758, 766 (6th Cir. 2012).\\n\\n And now consider the harm to society more broadly. Congress proscribed the attempted\\nproduction of child pornography to prevent not only harm to children, but also harm to “society\\nas a whole.” S. Rep. No. 95-438 (1977); see also Ferber, 458 U.S. at 757 n.8 (“[T]he sale of\\nthese movies, magazines and photographs depicting the sexual conduct of children [is] abhorrent\\nto the fabric of our society . . . .”). Victimizing children in this fashion contributes to a growing\\nmarket for child pornography and incentivizes the continuing sexual exploitation of other\\nchildren. See United States v. Bowers, 594 F.3d 522, 528–29 (6th Cir. 2010). Case in point:\\nFaulkner used the photographs he took (whether lascivious or not) to barter with like-minded\\nindividuals for other forms of child pornography. As victimized children reach adulthood, they\\noften struggle to develop healthy relationships, and to find their place in society. Ferber,\\n458 U.S. at 758. In this way, their burdens are shared by all.\\n\\n Given the serious and widespread harm these crimes inflict, Congress has chosen equally\\nserious punishments. See Bistline, 665 F.3d at 764 (citing United States v. Morace, 594 F.3d\\n340, 347 (4th Cir. 2010)). We do not question Congress’s determination that this behavior—to\\nwhich Faulkner himself pleaded guilty—is harmful. Nor, we should add, has Faulkner cited\\nauthority for the proposition that attempts to produce child pornography are harmless.\\n\\n While Faulkner’s counts are poor candidates for grouping under the Guidelines, there\\nremain instances where related child pornography offenses may be grouped or otherwise\\nconflated in some respect. For instance, had Faulkner’s attempt to take lascivious photos of\\nminors been followed directly by the completion of that crime, the offenses may have merged\\nbefore sentencing. See Christian v. Wellington, 739 F.3d 294, 298 (6th Cir. 2014)\\n(acknowledging that the Double Jeopardy Clause requires that two charges be merged when the\\nelements of one offense subsume those of the other). And if not, the Guidelines would compel\\ngrouping at the sentencing stage. See § 3D1.2 cmt n.3 (“When one count charges an attempt to\\ncommit an offense and the other charges the commission of that offense . . . the counts will be\\ngrouped together under subsection (a).”).\\n\\f No. 18-5867 United States v. Faulkner Page 9\\n\\n\\n Likewise, had Count 2 been a charge for conspiracy to produce child pornography,\\nFaulkner might have a compelling argument that the two counts constituted “one composite\\nharm,” with the conspiracy crime coming in the same “course of conduct” that resulted in the\\ncompleted crime. See § 3D1.2 cmt n.4. But the more analogous case here is the rape example\\ncited above. See id. A defendant completes one crime towards the victim—there rape, here\\ntaking illegal photos—and the next day attempts to do it again. That sequence reveals a second\\nopportunity to repeat a crime that already occurred, in other words, two distinct criminal acts\\n(and thus two harms), not one course of conduct to commit a single criminal act (and thus a\\nsingle harm).\\n\\n The former describes today’s case. Faulkner’s conduct took place over the course of two\\ndays. The first offense involved only O.B. It took place in her room at night while she was\\nsleeping. The photographs depicted O.B.’s bare vaginal area. The second offense involved a\\ndifferent setting. O.B. was wearing clothes different from the night before. She was with M.F.,\\nwho was not photographed previously, and the two girls were seated outside, not asleep in their\\nbedrooms: In short, a different situation that produced images capturing two young victims, not\\none. Against the backdrop of Bivens, we find that the crimes were distinct enough to make\\ngrouping the offenses inappropriate.\\n\\n * * * * *\\n\\n Faulkner closes with an even more sweeping argument: His conduct should be deemed\\nto have caused no harm whatsoever because M.F. and O.B. were unaware of his efforts to take\\nlascivious photographs of them. That argument is at odds with the text of 18 U.S.C. § 2251,\\nwhich does not require that the victim of a child pornography offense be aware of the offender’s\\nefforts. Had Congress intended to include victim knowledge as an element of the offense, it\\nundoubtedly would have said so. Yet the statute’s text says nothing of the sort. We have thus\\nrefused to read such a requirement into the statute. See, e.g., United States v. Humphrey, 608\\nF.3d 955, 957 (6th Cir. 2010) (affirming defendant’s sentence for filming his sexual acts with an\\nunderage girl without her knowledge); United States v. Vanderwal, 533 F. App’x. 498, 500 (6th\\nCir. 2013) (denying defendant’s motion for judgment of acquittal where he had surreptitiously\\nfilmed prepubescent girls without their knowledge while they used his bathroom). All the law\\n\\f No. 18-5867 United States v. Faulkner Page 10\\n\\n\\nrequires is that Faulkner specifically intended to capture lascivious images of M.F. and O.B. and\\ntook a substantial step to that end. See United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013).\\nHe pleaded guilty to doing so and has not asked us to disturb that plea.\\n\\n B. Faulkner’s Sentence Was Not Substantively Unreasonable.\\n\\n Faulkner next contends that his 570-month sentence is substantively unreasonable.\\nGenerally speaking, defendants who challenge their sentences as substantively unreasonable face\\nan uphill climb. We grant considerable deference to the sentence imposed by the district court,\\nreviewing its judgment only for abuses of discretion. See United States v. Rayyan, 885 F.3d 436,\\n442 (6th Cir. 2018). If the district court here acted reasonably in imposing Faulkner’s sentence,\\nwe must affirm its decision. United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007).\\n\\n As a starting point, we note that Faulkner’s sentence was below the applicable Guidelines\\nrange. The Guidelines suggested that Faulkner be sentenced to life in prison, in view of his\\noffense level of 43. See U.S.S.G. § 5A. Adding together the applicable statutory maximums for\\nCounts 1 through 15, the maximum sentence the district court could have imposed on Faulkner\\nwas 320 years, nearly 7 times greater than the sentence he ultimately received.\\n\\n We find no reason to question the district court’s judgment. Faulkner’s conduct was\\nreprehensible. He sexually abused his own five-year-old niece several times while residing in\\nhis brother’s home. Evading detection, he then amassed a large collection of child pornography.\\nHe associated with other like-minded individuals online, going so far as to even offer them\\nadvice on how to coax prepubescent girls into sex. Then Faulkner turned his attention to his\\nniece’s half-sister, touching her bare vaginal area as she slept, and later circulating photographs\\nof his abusive conduct online. He did the same with other less-explicit photos depicting both\\ngirls.\\n\\n Before the district court sentenced Faulkner, it took note of this unfortunate series of\\nevents along with some countervailing considerations, including Faulkner’s troubled past,\\nlimited criminal history, and military service. Taking this information together, the district court\\nopted to vary significantly downward from the life sentence recommended by the Guidelines,\\njust not as far as Faulkner had hoped. We cannot say that decision was unreasonable. See\\n\\f No. 18-5867 United States v. Faulkner Page 11\\n\\n\\nUnited States v. Houston, 529 F.3d 743, 756–57 (6th Cir. 2008) (noting that we disfavor\\nchallenges by a defendant that his sentence is too long despite a downward variance).\\n\\n Nor can we credit Faulkner’s citation to United States v. Aleo, 681 F.3d 290 (6th Cir.\\n2012). To be sure, Aleo did vacate a sentence as substantively unreasonable. But unlike today’s\\ncase, where the sentence imposed fell well below the Guidelines range, Aleo vacated a sentence\\nnearly two-and-a-half times greater than what the Guidelines recommended. Id. at 300. That\\ncase, then, is worlds apart from this one.\\n\\n We recognize that Faulkner’s sentence is lengthy. For better or worse, that is not unique\\nin this setting. Congress, in conjunction with the Sentencing Commission, has decided to impose\\nsignificant penalties for child pornography offenses. While Faulkner may question those policy\\njudgments, we cannot say that his sentence is substantively unreasonable when considered\\nagainst this framework.\\n\\n C. Faulkner’s Sentence Was Not Procedurally Unreasonable.\\n\\n Lastly, Faulkner contends that his sentence was procedurally unreasonable due to the\\ndistrict court’s refusal to lower his criminal history category despite stating that his criminal\\nhistory was “thin.” Here, Faulkner conflates the two distinct roles criminal history plays in\\nsentencing: First, it determines the criminal history category aspect of the Guidelines range\\ncomputation; second, the district court considers it in the § 3553(a) analysis. See United States v.\\nTristan-Madrigal, 601 F.3d 629, 636 n.1 (6th Cir. 2010).\\n\\n In the first instance, criminal history is relevant at sentencing when the district court\\ncomputes the Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007); see also\\nUnited States v. Asher, 239 F. App’x. 180, 184 (6th Cir. 2007) (holding that the district court was\\nbound to use the conversion ratio for crack cocaine contained in the Guidelines to compute the\\nsentencing range before choosing to vary the sentence upward or downward). With respect to\\nFaulkner’s criminal history, the Presentence Report correctly noted that Faulkner’s two prior\\nconvictions for shoplifting and driving under the influence each contributed one criminal history\\npoint under U.S.S.G. § 4A1.1(c). Faulkner argued at sentencing that the district court should\\n\\f No. 18-5867 United States v. Faulkner Page 12\\n\\n\\nreject this Guidelines-compelled criminal history computation. But the district court would have\\ncommitted reversible procedural error had it done so. Gall, 552 U.S. at 51.\\n\\n District courts enjoy greater discretion with respect to criminal history when assessing the\\n§ 3553(a) factors. Although it must be rigidly computed, the resulting Guidelines range is\\nultimately advisory. Rayyan, 885 F.3d at 440. Weighing that range along with the § 3553(a)\\nfactors, the district court decides what sentence to impose. This is the context in which the\\ndistrict court stated that Faulkner’s criminal history was “thin,” a point underscored by the\\ndistrict court’s Statement of Reasons form, which noted that Faulkner’s criminal history was\\n“overstated” by the Guidelines. We see no error in the district court’s consideration of those\\nfacts, or in its ultimate decision to depart downward from the Guidelines range. See Tristan-\\nMadrigal, 601 F.3d at 636 n.1.\\n\\n One final point deserves mentioning. Had any error occurred in calculating Faulkner’s\\ncriminal history category (and we do not find one here), that error would have been harmless.\\nErrors that do not affect the ultimate Guidelines range or sentence imposed are harmless and do\\nnot require resentencing. See United States v. Morrison, 852 F.3d 488, 491–92 (6th Cir. 2017)\\n(citing Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016)). Because Faulkner’s\\noffense level was 43, the Guidelines range was life in prison, regardless of his criminal history\\ncategory, see U.S.S.G. § 5A, something the district court itself noted in response to Faulkner’s\\narguments at sentencing. Any error by the district court, in other words, would have had no\\neffect on the ultimate sentence, and was thus harmless. Morrison, 852 F.3d at 491–92.\\n\\n III. CONCLUSION\\n\\n For these reasons, we AFFIRM the judgment of the district court.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4404702/\", \"author_raw\": \"CHAD A. READLER, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"SUHRHEINRICH"},"judge2":{"kind":"string","value":"BUSH"},"judge3":{"kind":"string","value":"READLER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627449/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Damion D. FAULKNER, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0120p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-5867\n v. │\n │\n │\n DAMION D. FAULKNER, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Middle District of Tennessee at Nashville.\n No. 3:15-cr-00101-1—Waverly D. Crenshaw, Jr., District Judge.\n\n Decided and Filed: June 7, 2019\n\n Before: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for\nAppellant. S. Carran Daughtrey, UNITED STATES ATTORNEY’S OFFICE, Nashville,\nTennessee, for Appellee.\n _________________\n\n OPINION\n _________________\n\n CHAD A. READLER, Circuit Judge. A fifteen-count indictment charged Damion\nFaulkner with a host of child-pornography-related offenses. Following his guilty plea to each\ncount of the indictment, Faulkner was sentenced to 570 months in prison.\n\f No. 18-5867 United States v. Faulkner Page 2\n\n\n On appeal, Faulkner argues that the United States Sentencing Guidelines required the\ndistrict court to “group” together at sentencing his respective charges for production and\nattempted production of child pornography (Counts 1 and 2), which would have resulted in a\nlower offense level for purposes of calculating Faulkner’s Guidelines range. Faulkner also\nchallenges his sentence as both substantively and procedurally unreasonable. We reject each of\nhis arguments and AFFIRM the judgment of the district court.\n\n I. BACKGROUND\n\n From childhood on, Damion Faulkner’s life was plagued by sexual misconduct.\nA stepbrother sexually abused Faulkner when he was nine years old. And Faulkner’s father was\nconvicted and classified as a sex offender for filming Faulkner’s thirteen-year-old stepsister\nwhile she was showering. Tragically, Faulkner would mirror this misconduct as an adult.\n\n For a time, Faulkner overcame his challenging upbringing, graduating high school and\nenlisting in the United States Navy, where he served his country for two years before being\ndischarged under honorable conditions. Upon his discharge, Faulkner went to live with his\nbrother’s family in Donelson, Tennessee.\n\n But in the years that followed, Faulkner’s life would take a downward turn. He would\nhave run-ins with the law, including convictions for shoplifting and drunk driving. And far\nworse than that, Faulkner began to act upon his long-harbored sexual attraction to young girls.\n\n A. Faulkner Engages In Sexual Misconduct With Minors.\n\n While residing with his brother, his brother’s wife, and their five-year-old daughter, M.F.,\nFaulkner touched M.F.’s groin on several occasions. M.F. told her parents about the incidents,\nbut Faulkner denied the accusations, and no report was made to law enforcement.\n\n Faulkner returned to his abusive ways a few years later. M.F., now eleven, along with\nher maternal half-sister, five-year-old O.B., were staying with M.F.’s father and Faulkner over a\nsummer weekend. On the first night of the girls’ stay, Faulkner snuck into O.B.’s room as she\nslept, pulled aside her shorts and underwear, and touched her bare vaginal area, recording the\nincident on his phone, both by photograph and video.\n\f No. 18-5867 United States v. Faulkner Page 3\n\n\n A separate incident took place the following day. This time, Faulkner took photographs\nas O.B. (wearing a bathing suit) and M.F. (wearing a sun dress) sat together. Though the girls\nwere fully clothed, many of the photographs focused on the girls’ genital areas or had other\nsexual overtones.\n\n Faulkner circulated the images he captured to at least ten other like-minded individuals,\nwith hopes of receiving similar images in return. With one of these individuals, he shared lurid\nadvice about how to make sexual advances on prepubescent girls: “[J]ust get her alone and kiss\nher the worsed [sic] she can do is say no and if she does that’s [sic] its tell her u want to make\nher a woman.” To another individual, Faulkner described his previous “relationship” with M.F.,\nexplaining that she had reported the repeated abuse to no avail. And to yet another, Faulkner\nclaimed to have taken additional photographs of M.F. that were lost when his phone stopped\nworking.\n\n For Faulkner, one criminal act led to another. In addition to recording illegal\npornographic images of children, Faulkner also illegally amassed a large collection of\npornographic images and videos of other child victims. Over time, Faulkner collected more than\n3,500 images, the worst of which depicted the brutal rape and sexual mutilation of prepubescent\nminors.\n\n Law enforcement ultimately caught up with Faulkner. In January 2014, officers in\nTennessee executed a search warrant at the home of Faulkner’s brother, where Faulkner was still\nresiding. The officers discovered an extensive collection of child pornography on Faulkner’s\nphone and computer. During the search, Faulkner confessed to capturing pornographic\nphotographs and video of O.B. as she slept in 2013, as well as to molesting M.F. in 2006.\n\n B. Faulkner Is Indicted On Child Pornography Charges And Initially\n Sentenced To 55 Years Imprisonment.\n\n Faulkner was indicted on July 15, 2015, and a superseding indictment was filed the\nfollowing June. It charged Faulkner with four types of child-pornography-related offenses:\n\f No. 18-5867 United States v. Faulkner Page 4\n\n\n • Production and attempted production of child pornography under 18 U.S.C.\n §§ 2251(a) & (d) (Counts 1 and 2);\n • Attempted transportation and transportation of child pornography under 18 U.S.C.\n §§ 2252A(a)(1) & (b) (Counts 3 through 13);\n • Receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) (Count 14); and\n • Possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) (Count 15).\n\nFaulkner pleaded guilty to all fifteen counts.\n\n Based upon that plea, the Presentence Report calculated Faulkner’s offense level as 44.\nIt was subsequently reduced to 43 pursuant to U.S.S.G. § 5A n.2, which states that offense levels\nabove 43 are to be reduced to 43, the highest level recognized by the Guidelines. With respect to\nhis criminal history calculation, Faulkner was assigned category II, having been assessed one\ncriminal history point for each of his two prior convictions, one for shoplifting and another for\ndrunk driving. But in view of the maximum offense level of 43 assessed to Faulkner, the\nGuidelines recommended a life sentence regardless of his criminal history category. U.S.S.G.\n§ 5A.\n\n Seeking to lower his Guidelines calculation, Faulkner asked the district court to apply\nU.S.S.G. § 3D1.2, which requires that “closely related counts” be “grouped together into a single\ngroup” for purposes of sentencing. Faulkner argued that Counts 1 and 2—for production and\nattempted production of child pornography, respectively—were closely related and thus should\nbe grouped at sentencing because they addressed conduct that caused the same composite harm.\nGrouping these two Counts would have reduced Faulkner’s offense level from 43 to 41, resulting\nin a Guidelines range reduction from life imprisonment to 360 months to life imprisonment.\nU.S.S.G. § 5A.\n\n The district court rejected Faulkner’s request. It did so on the basis that the attempted\nproduction of child pornography offense resulted in a harm different than the production offense,\nas the attempted production offense took place on a different day, in a different setting, and\ninvolved a second victim. The district court nonetheless noted that it would take account of\nFaulkner’s argument again when assessing the 18 U.S.C. § 3553(a) factors.\n\f No. 18-5867 United States v. Faulkner Page 5\n\n\n When it turned to those factors, the district court first highlighted the reprehensible nature\nof Faulkner’s conduct and the strong need for general and specific deterrence in the child\npornography context. By the same token, it characterized Faulkner’s criminal history as “thin.”\nThe district court also cited testimony from Faulkner’s family members, who asked for leniency,\nand from Vanderbilt University Psychologist Dr. Kimberly Brown, who testified that Faulkner’s\nrisk of reoffending was relatively low according to actuarial data. Taking all of this into account,\nthe district court sentenced Faulkner to 25 years on Count 1, 15 years on Count 2 (the mandatory\nminimum), 15 years on Counts 3 through 13, 7.5 years on Count 14, and 7.5 years on Count 15.\nCounts 1, 3, 14, and 15 were to run consecutively, resulting in a total sentence of 55 years.\n\n C. Following A Successful Appeal, Faulkner’s Sentence Was Reduced To 47.5 Years.\n\n Faulkner appealed his sentence to this Court. In that appeal, one argument stood above\nthe rest: That Faulkner’s sentences on Counts 14 (downloading child pornography) and 15\n(possessing child pornography) violated the Fifth Amendment’s Double Jeopardy Clause\nbecause they involved downloading and then possessing the same images. We remanded the\ncase for further factual development with respect to the Double Jeopardy issue and accordingly\ndeclined to reach Faulkner’s other challenges, awaiting resolution of the remanded proceeding.\nSee United States v. Faulkner, 730 F. App’x. 325, 330 (6th Cir. 2018).\n\n On remand, the government agreed with Faulkner that his sentences on Counts 14 and 15\nshould run concurrently rather than consecutively. The district court entered an order reflecting\nthat agreement, reducing Faulkner’s sentence to 47.5 years and rendering his Double Jeopardy\nchallenge moot. The final judgment was amended to reflect the new sentence. Faulkner then\nfiled this timely appeal for review of his remaining arguments.\n\n II. ANALYSIS\n\n A. The District Court Properly Rejected Faulkner’s Request To Group\n Counts 1 and 2.\n\n Was Faulkner’s sentence unjustifiably lengthened by the district court’s refusal to group\nhis production and attempted production of child pornography charges? Faulkner says that it\nwas, citing U.S.S.G. § 3D1.2 for support. We disagree.\n\f No. 18-5867 United States v. Faulkner Page 6\n\n\n Our analytical starting point is the terms of the Guidelines. Section 3D1.2 provides that\n“[a]ll counts involving substantially the same harm shall be grouped together into a single\nGroup.” The Guideline goes on to identify four instances in which counts in an indictment will\nbe considered to “involve substantially the same harm,” making them eligible for grouping.\nU.S.S.G. § 3D1.2; see also United States v. Bivens, 811 F.3d 840, 842 (6th Cir. 2016). Those\ninstances are defined in subsections (a)–(d) of the Guideline. See U.S.S.G. §§ 3D1.2(a)–(d).\n\n We understand Faulkner to be relying exclusively on subsection (b), the lone subsection\nhe invoked below. Arguments based upon other subsections are likely forfeited, see Scottsdale\nIns. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008), and would be unlikely to prevail in any\nevent. Subsection (a) applies to counts involving the “same act or transaction.” Faulkner’s\noffenses, however, occurred over separate days and involved different factual settings. In other\nwords, they were different acts or transactions. Subsection (c) applies where an additionally\ncharged offense is already accounted for under the Guideline section governing the principal\noffense. That subsection applies when, for example, a defendant is separately charged with\nmanufacturing methamphetamine and reckless endangerment of children. If the section\ngoverning the manufacturing charge (the charge carrying the higher base offense level) provides\nfor a two-level enhancement when the conduct endangered the lives of children, the two charges\nare grouped under subsection (c). See United States v. Eversole, 487 F.3d 1024, 1032 (6th Cir.\n2007). Finally, subsection (d) applies when a defendant’s “offense level is determined largely on\nthe basis of the total amount of harm or loss . . . or some other measure of aggregate harm.”\nEmblematic examples include property and drug crimes. See § 3D1.2 cmt n.6. We need not\ndetermine whether the production of child pornography is similarly emblematic, because the\nSentencing Commission has given us a more specific direction. It excluded from the scope of\nsubsection (d) violations of 18 U.S.C. § 2251(a) involving the production of child pornography.\nSee U.S.S.G. §§ 2G2.1, 3D1.2(d). Faulkner’s Count 1 is thus ineligible for grouping under\nsubsection (d). See United States v. Settle, 414 F.3d 629, 632 n.2 (6th Cir. 2005) (noting that\nprovisions dependent on the grouping rules do not operate unless both substantive offenses are\neligible for grouping).\n\f No. 18-5867 United States v. Faulkner Page 7\n\n\n Turning then to section § 3D1.2(b), we are instructed that, for purposes of sentencing,\ncounts should be deemed to “involve substantially the same harm” when they “involve the same\nvictim and two or more acts or transactions connected by a common criminal objective or\nconstituting part of a common scheme or plan.” The Guidelines offer some examples of when\ncounts “involve substantially the same harm.” Counts for conspiracy to commit extortion and\nthe completed extortion do; counts for robbing the same person on different occasions do not.\nNor do counts for raping the same victim on different days. See § 3D1.2 cmt n.4; Bivens,\n811 F.3d at 842.\n\n Applying these principles in the context of child pornography, we held in Bivens that\nseparate instances of photographing the same minor should not be grouped under subsection (b).\nBivens, 811 F.3d at 843. That was so, we observed, because “[e]ven if the same act is repeated\nduring an ongoing, continuous pattern of criminality between a single defendant and his victim,\neach act usually amounts to a fresh harm the victim must face.” Id. (collecting cases).\n\n Were Faulkner seeking to group multiple counts for completed child pornography\noffenses, he concedes that Bivens would control here. But Faulkner says his case is “unique”\n(and thus not controlled by Bivens) because Count 2 was merely an attempted offense, not a\ncompleted one. It follows, says Faulkner, that the two episodes caused the same composite\nharm: Whatever harm O.B. experienced from the lascivious photos Faulkner took on day 1, she\nsuffered no distinct harm from his attempt to take lascivious photographs of her on day 2. And\nM.F., Faulkner argues, was not harmed by either incident.\n\n We see no distinction between this case and Bivens simply because one count at issue\ninvolves attempting to produce child pornography. That attempt caused harm in every fair sense\nof the word. Start with the harm to the children involved. Faulkner took photographs of O.B.\n(wearing a bathing suit) and M.F. (wearing a sundress) that he intended to be lascivious in\nnature. He then sent those photographs to others via email. These photographs likely have been\nexchanged many times over by the individuals who received them. That conduct harmed these\nchildren in a way distinct from the harm caused by Faulkner’s production of more revealing\nphotographs the day before. And it is a harm, sadly, that may be relived for years to come,\n\f No. 18-5867 United States v. Faulkner Page 8\n\n\nshould these images continue to circulate on the internet. See New York v. Ferber, 458 U.S. 747,\n759 n.10 (1982); see also United States v. Bistline, 665 F.3d 758, 766 (6th Cir. 2012).\n\n And now consider the harm to society more broadly. Congress proscribed the attempted\nproduction of child pornography to prevent not only harm to children, but also harm to “society\nas a whole.” S. Rep. No. 95-438 (1977); see also Ferber, 458 U.S. at 757 n.8 (“[T]he sale of\nthese movies, magazines and photographs depicting the sexual conduct of children [is] abhorrent\nto the fabric of our society . . . .”). Victimizing children in this fashion contributes to a growing\nmarket for child pornography and incentivizes the continuing sexual exploitation of other\nchildren. See United States v. Bowers, 594 F.3d 522, 528–29 (6th Cir. 2010). Case in point:\nFaulkner used the photographs he took (whether lascivious or not) to barter with like-minded\nindividuals for other forms of child pornography. As victimized children reach adulthood, they\noften struggle to develop healthy relationships, and to find their place in society. Ferber,\n458 U.S. at 758. In this way, their burdens are shared by all.\n\n Given the serious and widespread harm these crimes inflict, Congress has chosen equally\nserious punishments. See Bistline, 665 F.3d at 764 (citing United States v. Morace, 594 F.3d\n340, 347 (4th Cir. 2010)). We do not question Congress’s determination that this behavior—to\nwhich Faulkner himself pleaded guilty—is harmful. Nor, we should add, has Faulkner cited\nauthority for the proposition that attempts to produce child pornography are harmless.\n\n While Faulkner’s counts are poor candidates for grouping under the Guidelines, there\nremain instances where related child pornography offenses may be grouped or otherwise\nconflated in some respect. For instance, had Faulkner’s attempt to take lascivious photos of\nminors been followed directly by the completion of that crime, the offenses may have merged\nbefore sentencing. See Christian v. Wellington, 739 F.3d 294, 298 (6th Cir. 2014)\n(acknowledging that the Double Jeopardy Clause requires that two charges be merged when the\nelements of one offense subsume those of the other). And if not, the Guidelines would compel\ngrouping at the sentencing stage. See § 3D1.2 cmt n.3 (“When one count charges an attempt to\ncommit an offense and the other charges the commission of that offense . . . the counts will be\ngrouped together under subsection (a).”).\n\f No. 18-5867 United States v. Faulkner Page 9\n\n\n Likewise, had Count 2 been a charge for conspiracy to produce child pornography,\nFaulkner might have a compelling argument that the two counts constituted “one composite\nharm,” with the conspiracy crime coming in the same “course of conduct” that resulted in the\ncompleted crime. See § 3D1.2 cmt n.4. But the more analogous case here is the rape example\ncited above. See id. A defendant completes one crime towards the victim—there rape, here\ntaking illegal photos—and the next day attempts to do it again. That sequence reveals a second\nopportunity to repeat a crime that already occurred, in other words, two distinct criminal acts\n(and thus two harms), not one course of conduct to commit a single criminal act (and thus a\nsingle harm).\n\n The former describes today’s case. Faulkner’s conduct took place over the course of two\ndays. The first offense involved only O.B. It took place in her room at night while she was\nsleeping. The photographs depicted O.B.’s bare vaginal area. The second offense involved a\ndifferent setting. O.B. was wearing clothes different from the night before. She was with M.F.,\nwho was not photographed previously, and the two girls were seated outside, not asleep in their\nbedrooms: In short, a different situation that produced images capturing two young victims, not\none. Against the backdrop of Bivens, we find that the crimes were distinct enough to make\ngrouping the offenses inappropriate.\n\n * * * * *\n\n Faulkner closes with an even more sweeping argument: His conduct should be deemed\nto have caused no harm whatsoever because M.F. and O.B. were unaware of his efforts to take\nlascivious photographs of them. That argument is at odds with the text of 18 U.S.C. § 2251,\nwhich does not require that the victim of a child pornography offense be aware of the offender’s\nefforts. Had Congress intended to include victim knowledge as an element of the offense, it\nundoubtedly would have said so. Yet the statute’s text says nothing of the sort. We have thus\nrefused to read such a requirement into the statute. See, e.g., United States v. Humphrey, 608\nF.3d 955, 957 (6th Cir. 2010) (affirming defendant’s sentence for filming his sexual acts with an\nunderage girl without her knowledge); United States v. Vanderwal, 533 F. App’x. 498, 500 (6th\nCir. 2013) (denying defendant’s motion for judgment of acquittal where he had surreptitiously\nfilmed prepubescent girls without their knowledge while they used his bathroom). All the law\n\f No. 18-5867 United States v. Faulkner Page 10\n\n\nrequires is that Faulkner specifically intended to capture lascivious images of M.F. and O.B. and\ntook a substantial step to that end. See United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013).\nHe pleaded guilty to doing so and has not asked us to disturb that plea.\n\n B. Faulkner’s Sentence Was Not Substantively Unreasonable.\n\n Faulkner next contends that his 570-month sentence is substantively unreasonable.\nGenerally speaking, defendants who challenge their sentences as substantively unreasonable face\nan uphill climb. We grant considerable deference to the sentence imposed by the district court,\nreviewing its judgment only for abuses of discretion. See United States v. Rayyan, 885 F.3d 436,\n442 (6th Cir. 2018). If the district court here acted reasonably in imposing Faulkner’s sentence,\nwe must affirm its decision. United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007).\n\n As a starting point, we note that Faulkner’s sentence was below the applicable Guidelines\nrange. The Guidelines suggested that Faulkner be sentenced to life in prison, in view of his\noffense level of 43. See U.S.S.G. § 5A. Adding together the applicable statutory maximums for\nCounts 1 through 15, the maximum sentence the district court could have imposed on Faulkner\nwas 320 years, nearly 7 times greater than the sentence he ultimately received.\n\n We find no reason to question the district court’s judgment. Faulkner’s conduct was\nreprehensible. He sexually abused his own five-year-old niece several times while residing in\nhis brother’s home. Evading detection, he then amassed a large collection of child pornography.\nHe associated with other like-minded individuals online, going so far as to even offer them\nadvice on how to coax prepubescent girls into sex. Then Faulkner turned his attention to his\nniece’s half-sister, touching her bare vaginal area as she slept, and later circulating photographs\nof his abusive conduct online. He did the same with other less-explicit photos depicting both\ngirls.\n\n Before the district court sentenced Faulkner, it took note of this unfortunate series of\nevents along with some countervailing considerations, including Faulkner’s troubled past,\nlimited criminal history, and military service. Taking this information together, the district court\nopted to vary significantly downward from the life sentence recommended by the Guidelines,\njust not as far as Faulkner had hoped. We cannot say that decision was unreasonable. See\n\f No. 18-5867 United States v. Faulkner Page 11\n\n\nUnited States v. Houston, 529 F.3d 743, 756–57 (6th Cir. 2008) (noting that we disfavor\nchallenges by a defendant that his sentence is too long despite a downward variance).\n\n Nor can we credit Faulkner’s citation to United States v. Aleo, 681 F.3d 290 (6th Cir.\n2012). To be sure, Aleo did vacate a sentence as substantively unreasonable. But unlike today’s\ncase, where the sentence imposed fell well below the Guidelines range, Aleo vacated a sentence\nnearly two-and-a-half times greater than what the Guidelines recommended. Id. at 300. That\ncase, then, is worlds apart from this one.\n\n We recognize that Faulkner’s sentence is lengthy. For better or worse, that is not unique\nin this setting. Congress, in conjunction with the Sentencing Commission, has decided to impose\nsignificant penalties for child pornography offenses. While Faulkner may question those policy\njudgments, we cannot say that his sentence is substantively unreasonable when considered\nagainst this framework.\n\n C. Faulkner’s Sentence Was Not Procedurally Unreasonable.\n\n Lastly, Faulkner contends that his sentence was procedurally unreasonable due to the\ndistrict court’s refusal to lower his criminal history category despite stating that his criminal\nhistory was “thin.” Here, Faulkner conflates the two distinct roles criminal history plays in\nsentencing: First, it determines the criminal history category aspect of the Guidelines range\ncomputation; second, the district court considers it in the § 3553(a) analysis. See United States v.\nTristan-Madrigal, 601 F.3d 629, 636 n.1 (6th Cir. 2010).\n\n In the first instance, criminal history is relevant at sentencing when the district court\ncomputes the Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007); see also\nUnited States v. Asher, 239 F. App’x. 180, 184 (6th Cir. 2007) (holding that the district court was\nbound to use the conversion ratio for crack cocaine contained in the Guidelines to compute the\nsentencing range before choosing to vary the sentence upward or downward). With respect to\nFaulkner’s criminal history, the Presentence Report correctly noted that Faulkner’s two prior\nconvictions for shoplifting and driving under the influence each contributed one criminal history\npoint under U.S.S.G. § 4A1.1(c). Faulkner argued at sentencing that the district court should\n\f No. 18-5867 United States v. Faulkner Page 12\n\n\nreject this Guidelines-compelled criminal history computation. But the district court would have\ncommitted reversible procedural error had it done so. Gall, 552 U.S. at 51.\n\n District courts enjoy greater discretion with respect to criminal history when assessing the\n§ 3553(a) factors. Although it must be rigidly computed, the resulting Guidelines range is\nultimately advisory. Rayyan, 885 F.3d at 440. Weighing that range along with the § 3553(a)\nfactors, the district court decides what sentence to impose. This is the context in which the\ndistrict court stated that Faulkner’s criminal history was “thin,” a point underscored by the\ndistrict court’s Statement of Reasons form, which noted that Faulkner’s criminal history was\n“overstated” by the Guidelines. We see no error in the district court’s consideration of those\nfacts, or in its ultimate decision to depart downward from the Guidelines range. See Tristan-\nMadrigal, 601 F.3d at 636 n.1.\n\n One final point deserves mentioning. Had any error occurred in calculating Faulkner’s\ncriminal history category (and we do not find one here), that error would have been harmless.\nErrors that do not affect the ultimate Guidelines range or sentence imposed are harmless and do\nnot require resentencing. See United States v. Morrison, 852 F.3d 488, 491–92 (6th Cir. 2017)\n(citing Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016)). Because Faulkner’s\noffense level was 43, the Guidelines range was life in prison, regardless of his criminal history\ncategory, see U.S.S.G. § 5A, something the district court itself noted in response to Faulkner’s\narguments at sentencing. Any error by the district court, in other words, would have had no\neffect on the ultimate sentence, and was thus harmless. Morrison, 852 F.3d at 491–92.\n\n III. CONCLUSION\n\n For these reasons, we AFFIRM the judgment of the district court.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Damion D. FAULKNER, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0120p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-5867\\n v. │\\n │\\n │\\n DAMION D. FAULKNER, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Middle District of Tennessee at Nashville.\\n No. 3:15-cr-00101-1—Waverly D. Crenshaw, Jr., District Judge.\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for\\nAppellant. S. Carran Daughtrey, UNITED STATES ATTORNEY’S OFFICE, Nashville,\\nTennessee, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n CHAD A. READLER, Circuit Judge. A fifteen-count indictment charged Damion\\nFaulkner with a host of child-pornography-related offenses. Following his guilty plea to each\\ncount of the indictment, Faulkner was sentenced to 570 months in prison.\\n\\f No. 18-5867 United States v. Faulkner Page 2\\n\\n\\n On appeal, Faulkner argues that the United States Sentencing Guidelines required the\\ndistrict court to “group” together at sentencing his respective charges for production and\\nattempted production of child pornography (Counts 1 and 2), which would have resulted in a\\nlower offense level for purposes of calculating Faulkner’s Guidelines range. Faulkner also\\nchallenges his sentence as both substantively and procedurally unreasonable. We reject each of\\nhis arguments and AFFIRM the judgment of the district court.\\n\\n I. BACKGROUND\\n\\n From childhood on, Damion Faulkner’s life was plagued by sexual misconduct.\\nA stepbrother sexually abused Faulkner when he was nine years old. And Faulkner’s father was\\nconvicted and classified as a sex offender for filming Faulkner’s thirteen-year-old stepsister\\nwhile she was showering. Tragically, Faulkner would mirror this misconduct as an adult.\\n\\n For a time, Faulkner overcame his challenging upbringing, graduating high school and\\nenlisting in the United States Navy, where he served his country for two years before being\\ndischarged under honorable conditions. Upon his discharge, Faulkner went to live with his\\nbrother’s family in Donelson, Tennessee.\\n\\n But in the years that followed, Faulkner’s life would take a downward turn. He would\\nhave run-ins with the law, including convictions for shoplifting and drunk driving. And far\\nworse than that, Faulkner began to act upon his long-harbored sexual attraction to young girls.\\n\\n A. Faulkner Engages In Sexual Misconduct With Minors.\\n\\n While residing with his brother, his brother’s wife, and their five-year-old daughter, M.F.,\\nFaulkner touched M.F.’s groin on several occasions. M.F. told her parents about the incidents,\\nbut Faulkner denied the accusations, and no report was made to law enforcement.\\n\\n Faulkner returned to his abusive ways a few years later. M.F., now eleven, along with\\nher maternal half-sister, five-year-old O.B., were staying with M.F.’s father and Faulkner over a\\nsummer weekend. On the first night of the girls’ stay, Faulkner snuck into O.B.’s room as she\\nslept, pulled aside her shorts and underwear, and touched her bare vaginal area, recording the\\nincident on his phone, both by photograph and video.\\n\\f No. 18-5867 United States v. Faulkner Page 3\\n\\n\\n A separate incident took place the following day. This time, Faulkner took photographs\\nas O.B. (wearing a bathing suit) and M.F. (wearing a sun dress) sat together. Though the girls\\nwere fully clothed, many of the photographs focused on the girls’ genital areas or had other\\nsexual overtones.\\n\\n Faulkner circulated the images he captured to at least ten other like-minded individuals,\\nwith hopes of receiving similar images in return. With one of these individuals, he shared lurid\\nadvice about how to make sexual advances on prepubescent girls: “[J]ust get her alone and kiss\\nher the worsed [sic] she can do is say no and if she does that’s [sic] its tell her u want to make\\nher a woman.” To another individual, Faulkner described his previous “relationship” with M.F.,\\nexplaining that she had reported the repeated abuse to no avail. And to yet another, Faulkner\\nclaimed to have taken additional photographs of M.F. that were lost when his phone stopped\\nworking.\\n\\n For Faulkner, one criminal act led to another. In addition to recording illegal\\npornographic images of children, Faulkner also illegally amassed a large collection of\\npornographic images and videos of other child victims. Over time, Faulkner collected more than\\n3,500 images, the worst of which depicted the brutal rape and sexual mutilation of prepubescent\\nminors.\\n\\n Law enforcement ultimately caught up with Faulkner. In January 2014, officers in\\nTennessee executed a search warrant at the home of Faulkner’s brother, where Faulkner was still\\nresiding. The officers discovered an extensive collection of child pornography on Faulkner’s\\nphone and computer. During the search, Faulkner confessed to capturing pornographic\\nphotographs and video of O.B. as she slept in 2013, as well as to molesting M.F. in 2006.\\n\\n B. Faulkner Is Indicted On Child Pornography Charges And Initially\\n Sentenced To 55 Years Imprisonment.\\n\\n Faulkner was indicted on July 15, 2015, and a superseding indictment was filed the\\nfollowing June. It charged Faulkner with four types of child-pornography-related offenses:\\n\\f No. 18-5867 United States v. Faulkner Page 4\\n\\n\\n • Production and attempted production of child pornography under 18 U.S.C.\\n §§ 2251(a) & (d) (Counts 1 and 2);\\n • Attempted transportation and transportation of child pornography under 18 U.S.C.\\n §§ 2252A(a)(1) & (b) (Counts 3 through 13);\\n • Receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) (Count 14); and\\n • Possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) (Count 15).\\n\\nFaulkner pleaded guilty to all fifteen counts.\\n\\n Based upon that plea, the Presentence Report calculated Faulkner’s offense level as 44.\\nIt was subsequently reduced to 43 pursuant to U.S.S.G. § 5A n.2, which states that offense levels\\nabove 43 are to be reduced to 43, the highest level recognized by the Guidelines. With respect to\\nhis criminal history calculation, Faulkner was assigned category II, having been assessed one\\ncriminal history point for each of his two prior convictions, one for shoplifting and another for\\ndrunk driving. But in view of the maximum offense level of 43 assessed to Faulkner, the\\nGuidelines recommended a life sentence regardless of his criminal history category. U.S.S.G.\\n§ 5A.\\n\\n Seeking to lower his Guidelines calculation, Faulkner asked the district court to apply\\nU.S.S.G. § 3D1.2, which requires that “closely related counts” be “grouped together into a single\\ngroup” for purposes of sentencing. Faulkner argued that Counts 1 and 2—for production and\\nattempted production of child pornography, respectively—were closely related and thus should\\nbe grouped at sentencing because they addressed conduct that caused the same composite harm.\\nGrouping these two Counts would have reduced Faulkner’s offense level from 43 to 41, resulting\\nin a Guidelines range reduction from life imprisonment to 360 months to life imprisonment.\\nU.S.S.G. § 5A.\\n\\n The district court rejected Faulkner’s request. It did so on the basis that the attempted\\nproduction of child pornography offense resulted in a harm different than the production offense,\\nas the attempted production offense took place on a different day, in a different setting, and\\ninvolved a second victim. The district court nonetheless noted that it would take account of\\nFaulkner’s argument again when assessing the 18 U.S.C. § 3553(a) factors.\\n\\f No. 18-5867 United States v. Faulkner Page 5\\n\\n\\n When it turned to those factors, the district court first highlighted the reprehensible nature\\nof Faulkner’s conduct and the strong need for general and specific deterrence in the child\\npornography context. By the same token, it characterized Faulkner’s criminal history as “thin.”\\nThe district court also cited testimony from Faulkner’s family members, who asked for leniency,\\nand from Vanderbilt University Psychologist Dr. Kimberly Brown, who testified that Faulkner’s\\nrisk of reoffending was relatively low according to actuarial data. Taking all of this into account,\\nthe district court sentenced Faulkner to 25 years on Count 1, 15 years on Count 2 (the mandatory\\nminimum), 15 years on Counts 3 through 13, 7.5 years on Count 14, and 7.5 years on Count 15.\\nCounts 1, 3, 14, and 15 were to run consecutively, resulting in a total sentence of 55 years.\\n\\n C. Following A Successful Appeal, Faulkner’s Sentence Was Reduced To 47.5 Years.\\n\\n Faulkner appealed his sentence to this Court. In that appeal, one argument stood above\\nthe rest: That Faulkner’s sentences on Counts 14 (downloading child pornography) and 15\\n(possessing child pornography) violated the Fifth Amendment’s Double Jeopardy Clause\\nbecause they involved downloading and then possessing the same images. We remanded the\\ncase for further factual development with respect to the Double Jeopardy issue and accordingly\\ndeclined to reach Faulkner’s other challenges, awaiting resolution of the remanded proceeding.\\nSee United States v. Faulkner, 730 F. App’x. 325, 330 (6th Cir. 2018).\\n\\n On remand, the government agreed with Faulkner that his sentences on Counts 14 and 15\\nshould run concurrently rather than consecutively. The district court entered an order reflecting\\nthat agreement, reducing Faulkner’s sentence to 47.5 years and rendering his Double Jeopardy\\nchallenge moot. The final judgment was amended to reflect the new sentence. Faulkner then\\nfiled this timely appeal for review of his remaining arguments.\\n\\n II. ANALYSIS\\n\\n A. The District Court Properly Rejected Faulkner’s Request To Group\\n Counts 1 and 2.\\n\\n Was Faulkner’s sentence unjustifiably lengthened by the district court’s refusal to group\\nhis production and attempted production of child pornography charges? Faulkner says that it\\nwas, citing U.S.S.G. § 3D1.2 for support. We disagree.\\n\\f No. 18-5867 United States v. Faulkner Page 6\\n\\n\\n Our analytical starting point is the terms of the Guidelines. Section 3D1.2 provides that\\n“[a]ll counts involving substantially the same harm shall be grouped together into a single\\nGroup.” The Guideline goes on to identify four instances in which counts in an indictment will\\nbe considered to “involve substantially the same harm,” making them eligible for grouping.\\nU.S.S.G. § 3D1.2; see also United States v. Bivens, 811 F.3d 840, 842 (6th Cir. 2016). Those\\ninstances are defined in subsections (a)–(d) of the Guideline. See U.S.S.G. §§ 3D1.2(a)–(d).\\n\\n We understand Faulkner to be relying exclusively on subsection (b), the lone subsection\\nhe invoked below. Arguments based upon other subsections are likely forfeited, see Scottsdale\\nIns. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008), and would be unlikely to prevail in any\\nevent. Subsection (a) applies to counts involving the “same act or transaction.” Faulkner’s\\noffenses, however, occurred over separate days and involved different factual settings. In other\\nwords, they were different acts or transactions. Subsection (c) applies where an additionally\\ncharged offense is already accounted for under the Guideline section governing the principal\\noffense. That subsection applies when, for example, a defendant is separately charged with\\nmanufacturing methamphetamine and reckless endangerment of children. If the section\\ngoverning the manufacturing charge (the charge carrying the higher base offense level) provides\\nfor a two-level enhancement when the conduct endangered the lives of children, the two charges\\nare grouped under subsection (c). See United States v. Eversole, 487 F.3d 1024, 1032 (6th Cir.\\n2007). Finally, subsection (d) applies when a defendant’s “offense level is determined largely on\\nthe basis of the total amount of harm or loss . . . or some other measure of aggregate harm.”\\nEmblematic examples include property and drug crimes. See § 3D1.2 cmt n.6. We need not\\ndetermine whether the production of child pornography is similarly emblematic, because the\\nSentencing Commission has given us a more specific direction. It excluded from the scope of\\nsubsection (d) violations of 18 U.S.C. § 2251(a) involving the production of child pornography.\\nSee U.S.S.G. §§ 2G2.1, 3D1.2(d). Faulkner’s Count 1 is thus ineligible for grouping under\\nsubsection (d). See United States v. Settle, 414 F.3d 629, 632 n.2 (6th Cir. 2005) (noting that\\nprovisions dependent on the grouping rules do not operate unless both substantive offenses are\\neligible for grouping).\\n\\f No. 18-5867 United States v. Faulkner Page 7\\n\\n\\n Turning then to section § 3D1.2(b), we are instructed that, for purposes of sentencing,\\ncounts should be deemed to “involve substantially the same harm” when they “involve the same\\nvictim and two or more acts or transactions connected by a common criminal objective or\\nconstituting part of a common scheme or plan.” The Guidelines offer some examples of when\\ncounts “involve substantially the same harm.” Counts for conspiracy to commit extortion and\\nthe completed extortion do; counts for robbing the same person on different occasions do not.\\nNor do counts for raping the same victim on different days. See § 3D1.2 cmt n.4; Bivens,\\n811 F.3d at 842.\\n\\n Applying these principles in the context of child pornography, we held in Bivens that\\nseparate instances of photographing the same minor should not be grouped under subsection (b).\\nBivens, 811 F.3d at 843. That was so, we observed, because “[e]ven if the same act is repeated\\nduring an ongoing, continuous pattern of criminality between a single defendant and his victim,\\neach act usually amounts to a fresh harm the victim must face.” Id. (collecting cases).\\n\\n Were Faulkner seeking to group multiple counts for completed child pornography\\noffenses, he concedes that Bivens would control here. But Faulkner says his case is “unique”\\n(and thus not controlled by Bivens) because Count 2 was merely an attempted offense, not a\\ncompleted one. It follows, says Faulkner, that the two episodes caused the same composite\\nharm: Whatever harm O.B. experienced from the lascivious photos Faulkner took on day 1, she\\nsuffered no distinct harm from his attempt to take lascivious photographs of her on day 2. And\\nM.F., Faulkner argues, was not harmed by either incident.\\n\\n We see no distinction between this case and Bivens simply because one count at issue\\ninvolves attempting to produce child pornography. That attempt caused harm in every fair sense\\nof the word. Start with the harm to the children involved. Faulkner took photographs of O.B.\\n(wearing a bathing suit) and M.F. (wearing a sundress) that he intended to be lascivious in\\nnature. He then sent those photographs to others via email. These photographs likely have been\\nexchanged many times over by the individuals who received them. That conduct harmed these\\nchildren in a way distinct from the harm caused by Faulkner’s production of more revealing\\nphotographs the day before. And it is a harm, sadly, that may be relived for years to come,\\n\\f No. 18-5867 United States v. Faulkner Page 8\\n\\n\\nshould these images continue to circulate on the internet. See New York v. Ferber, 458 U.S. 747,\\n759 n.10 (1982); see also United States v. Bistline, 665 F.3d 758, 766 (6th Cir. 2012).\\n\\n And now consider the harm to society more broadly. Congress proscribed the attempted\\nproduction of child pornography to prevent not only harm to children, but also harm to “society\\nas a whole.” S. Rep. No. 95-438 (1977); see also Ferber, 458 U.S. at 757 n.8 (“[T]he sale of\\nthese movies, magazines and photographs depicting the sexual conduct of children [is] abhorrent\\nto the fabric of our society . . . .”). Victimizing children in this fashion contributes to a growing\\nmarket for child pornography and incentivizes the continuing sexual exploitation of other\\nchildren. See United States v. Bowers, 594 F.3d 522, 528–29 (6th Cir. 2010). Case in point:\\nFaulkner used the photographs he took (whether lascivious or not) to barter with like-minded\\nindividuals for other forms of child pornography. As victimized children reach adulthood, they\\noften struggle to develop healthy relationships, and to find their place in society. Ferber,\\n458 U.S. at 758. In this way, their burdens are shared by all.\\n\\n Given the serious and widespread harm these crimes inflict, Congress has chosen equally\\nserious punishments. See Bistline, 665 F.3d at 764 (citing United States v. Morace, 594 F.3d\\n340, 347 (4th Cir. 2010)). We do not question Congress’s determination that this behavior—to\\nwhich Faulkner himself pleaded guilty—is harmful. Nor, we should add, has Faulkner cited\\nauthority for the proposition that attempts to produce child pornography are harmless.\\n\\n While Faulkner’s counts are poor candidates for grouping under the Guidelines, there\\nremain instances where related child pornography offenses may be grouped or otherwise\\nconflated in some respect. For instance, had Faulkner’s attempt to take lascivious photos of\\nminors been followed directly by the completion of that crime, the offenses may have merged\\nbefore sentencing. See Christian v. Wellington, 739 F.3d 294, 298 (6th Cir. 2014)\\n(acknowledging that the Double Jeopardy Clause requires that two charges be merged when the\\nelements of one offense subsume those of the other). And if not, the Guidelines would compel\\ngrouping at the sentencing stage. See § 3D1.2 cmt n.3 (“When one count charges an attempt to\\ncommit an offense and the other charges the commission of that offense . . . the counts will be\\ngrouped together under subsection (a).”).\\n\\f No. 18-5867 United States v. Faulkner Page 9\\n\\n\\n Likewise, had Count 2 been a charge for conspiracy to produce child pornography,\\nFaulkner might have a compelling argument that the two counts constituted “one composite\\nharm,” with the conspiracy crime coming in the same “course of conduct” that resulted in the\\ncompleted crime. See § 3D1.2 cmt n.4. But the more analogous case here is the rape example\\ncited above. See id. A defendant completes one crime towards the victim—there rape, here\\ntaking illegal photos—and the next day attempts to do it again. That sequence reveals a second\\nopportunity to repeat a crime that already occurred, in other words, two distinct criminal acts\\n(and thus two harms), not one course of conduct to commit a single criminal act (and thus a\\nsingle harm).\\n\\n The former describes today’s case. Faulkner’s conduct took place over the course of two\\ndays. The first offense involved only O.B. It took place in her room at night while she was\\nsleeping. The photographs depicted O.B.’s bare vaginal area. The second offense involved a\\ndifferent setting. O.B. was wearing clothes different from the night before. She was with M.F.,\\nwho was not photographed previously, and the two girls were seated outside, not asleep in their\\nbedrooms: In short, a different situation that produced images capturing two young victims, not\\none. Against the backdrop of Bivens, we find that the crimes were distinct enough to make\\ngrouping the offenses inappropriate.\\n\\n * * * * *\\n\\n Faulkner closes with an even more sweeping argument: His conduct should be deemed\\nto have caused no harm whatsoever because M.F. and O.B. were unaware of his efforts to take\\nlascivious photographs of them. That argument is at odds with the text of 18 U.S.C. § 2251,\\nwhich does not require that the victim of a child pornography offense be aware of the offender’s\\nefforts. Had Congress intended to include victim knowledge as an element of the offense, it\\nundoubtedly would have said so. Yet the statute’s text says nothing of the sort. We have thus\\nrefused to read such a requirement into the statute. See, e.g., United States v. Humphrey, 608\\nF.3d 955, 957 (6th Cir. 2010) (affirming defendant’s sentence for filming his sexual acts with an\\nunderage girl without her knowledge); United States v. Vanderwal, 533 F. App’x. 498, 500 (6th\\nCir. 2013) (denying defendant’s motion for judgment of acquittal where he had surreptitiously\\nfilmed prepubescent girls without their knowledge while they used his bathroom). All the law\\n\\f No. 18-5867 United States v. Faulkner Page 10\\n\\n\\nrequires is that Faulkner specifically intended to capture lascivious images of M.F. and O.B. and\\ntook a substantial step to that end. See United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013).\\nHe pleaded guilty to doing so and has not asked us to disturb that plea.\\n\\n B. Faulkner’s Sentence Was Not Substantively Unreasonable.\\n\\n Faulkner next contends that his 570-month sentence is substantively unreasonable.\\nGenerally speaking, defendants who challenge their sentences as substantively unreasonable face\\nan uphill climb. We grant considerable deference to the sentence imposed by the district court,\\nreviewing its judgment only for abuses of discretion. See United States v. Rayyan, 885 F.3d 436,\\n442 (6th Cir. 2018). If the district court here acted reasonably in imposing Faulkner’s sentence,\\nwe must affirm its decision. United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007).\\n\\n As a starting point, we note that Faulkner’s sentence was below the applicable Guidelines\\nrange. The Guidelines suggested that Faulkner be sentenced to life in prison, in view of his\\noffense level of 43. See U.S.S.G. § 5A. Adding together the applicable statutory maximums for\\nCounts 1 through 15, the maximum sentence the district court could have imposed on Faulkner\\nwas 320 years, nearly 7 times greater than the sentence he ultimately received.\\n\\n We find no reason to question the district court’s judgment. Faulkner’s conduct was\\nreprehensible. He sexually abused his own five-year-old niece several times while residing in\\nhis brother’s home. Evading detection, he then amassed a large collection of child pornography.\\nHe associated with other like-minded individuals online, going so far as to even offer them\\nadvice on how to coax prepubescent girls into sex. Then Faulkner turned his attention to his\\nniece’s half-sister, touching her bare vaginal area as she slept, and later circulating photographs\\nof his abusive conduct online. He did the same with other less-explicit photos depicting both\\ngirls.\\n\\n Before the district court sentenced Faulkner, it took note of this unfortunate series of\\nevents along with some countervailing considerations, including Faulkner’s troubled past,\\nlimited criminal history, and military service. Taking this information together, the district court\\nopted to vary significantly downward from the life sentence recommended by the Guidelines,\\njust not as far as Faulkner had hoped. We cannot say that decision was unreasonable. See\\n\\f No. 18-5867 United States v. Faulkner Page 11\\n\\n\\nUnited States v. Houston, 529 F.3d 743, 756–57 (6th Cir. 2008) (noting that we disfavor\\nchallenges by a defendant that his sentence is too long despite a downward variance).\\n\\n Nor can we credit Faulkner’s citation to United States v. Aleo, 681 F.3d 290 (6th Cir.\\n2012). To be sure, Aleo did vacate a sentence as substantively unreasonable. But unlike today’s\\ncase, where the sentence imposed fell well below the Guidelines range, Aleo vacated a sentence\\nnearly two-and-a-half times greater than what the Guidelines recommended. Id. at 300. That\\ncase, then, is worlds apart from this one.\\n\\n We recognize that Faulkner’s sentence is lengthy. For better or worse, that is not unique\\nin this setting. Congress, in conjunction with the Sentencing Commission, has decided to impose\\nsignificant penalties for child pornography offenses. While Faulkner may question those policy\\njudgments, we cannot say that his sentence is substantively unreasonable when considered\\nagainst this framework.\\n\\n C. Faulkner’s Sentence Was Not Procedurally Unreasonable.\\n\\n Lastly, Faulkner contends that his sentence was procedurally unreasonable due to the\\ndistrict court’s refusal to lower his criminal history category despite stating that his criminal\\nhistory was “thin.” Here, Faulkner conflates the two distinct roles criminal history plays in\\nsentencing: First, it determines the criminal history category aspect of the Guidelines range\\ncomputation; second, the district court considers it in the § 3553(a) analysis. See United States v.\\nTristan-Madrigal, 601 F.3d 629, 636 n.1 (6th Cir. 2010).\\n\\n In the first instance, criminal history is relevant at sentencing when the district court\\ncomputes the Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007); see also\\nUnited States v. Asher, 239 F. App’x. 180, 184 (6th Cir. 2007) (holding that the district court was\\nbound to use the conversion ratio for crack cocaine contained in the Guidelines to compute the\\nsentencing range before choosing to vary the sentence upward or downward). With respect to\\nFaulkner’s criminal history, the Presentence Report correctly noted that Faulkner’s two prior\\nconvictions for shoplifting and driving under the influence each contributed one criminal history\\npoint under U.S.S.G. § 4A1.1(c). Faulkner argued at sentencing that the district court should\\n\\f No. 18-5867 United States v. Faulkner Page 12\\n\\n\\nreject this Guidelines-compelled criminal history computation. But the district court would have\\ncommitted reversible procedural error had it done so. Gall, 552 U.S. at 51.\\n\\n District courts enjoy greater discretion with respect to criminal history when assessing the\\n§ 3553(a) factors. Although it must be rigidly computed, the resulting Guidelines range is\\nultimately advisory. Rayyan, 885 F.3d at 440. Weighing that range along with the § 3553(a)\\nfactors, the district court decides what sentence to impose. This is the context in which the\\ndistrict court stated that Faulkner’s criminal history was “thin,” a point underscored by the\\ndistrict court’s Statement of Reasons form, which noted that Faulkner’s criminal history was\\n“overstated” by the Guidelines. We see no error in the district court’s consideration of those\\nfacts, or in its ultimate decision to depart downward from the Guidelines range. See Tristan-\\nMadrigal, 601 F.3d at 636 n.1.\\n\\n One final point deserves mentioning. Had any error occurred in calculating Faulkner’s\\ncriminal history category (and we do not find one here), that error would have been harmless.\\nErrors that do not affect the ultimate Guidelines range or sentence imposed are harmless and do\\nnot require resentencing. See United States v. Morrison, 852 F.3d 488, 491–92 (6th Cir. 2017)\\n(citing Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016)). Because Faulkner’s\\noffense level was 43, the Guidelines range was life in prison, regardless of his criminal history\\ncategory, see U.S.S.G. § 5A, something the district court itself noted in response to Faulkner’s\\narguments at sentencing. Any error by the district court, in other words, would have had no\\neffect on the ultimate sentence, and was thus harmless. Morrison, 852 F.3d at 491–92.\\n\\n III. CONCLUSION\\n\\n For these reasons, we AFFIRM the judgment of the district court.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2490,"cells":{"id":{"kind":"number","value":4627452,"string":"4,627,452"},"name":{"kind":"string","value":"Michael Adam BOOTH, Plaintiff-Appellant, v. NISSAN NORTH AMERICA, INC., Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Michael Booth v. Nissan N. Am., Inc."},"decision_date":{"kind":"string","value":"2019-06-07"},"docket_number":{"kind":"string","value":"18-5985"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Guy, Sutton, Nalbandian\", \"parties\": \"\", \"opinions\": [{\"author\": \"NALBANDIAN, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0119p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n MICHAEL ADAM BOOTH, ┐\\n Plaintiff-Appellant, │\\n │\\n > No. 18-5985\\n v. │\\n │\\n │\\n NISSAN NORTH AMERICA, INC., │\\n Defendant-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Middle District of Tennessee at Nashville.\\n No. 3:17-cv-00755—William Lynn Campbell, Jr., District Judge.\\n\\n Argued: April 30, 2019\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Constance Mann, THE LAW OFFICES OF CONSTANCE MANN, Franklin,\\nTennessee, for Appellant. Stanley E. Graham, WALLER LANSDEN DORTCH & DAVIS,\\nLLP, Nashville, Tennessee, for Appellee. ON BRIEF: Constance Mann, THE LAW OFFICES\\nOF CONSTANCE MANN, Franklin, Tennessee, for Appellant. Stanley E. Graham, Brittany\\nStancombe Hopper, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, for\\nAppellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n NALBANDIAN, Circuit Judge. After Michael Booth started working at a Nissan factory\\nin Tennessee, he injured his neck and sought medical treatment. Booth’s physician\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 2\\n\\n\\nrecommended several work restrictions, including that he not reach above his head or flex his\\nneck too much, but the restrictions did not sideline Booth. Indeed, he continued to work on the\\nassembly line for about a decade without incident. But in 2015, the work restrictions became\\nrelevant again. Booth requested a transfer to a different position in the factory, which Nissan\\ndenied because that position’s duties conflicted with Booth’s work restrictions. Booth contends\\nthat Nissan’s denial was disability discrimination that violated the Americans with Disabilities\\nAct (“ADA”), 42 U.S.C. §§ 12101 et seq.\\n\\n Soon after Booth requested the transfer, Nissan announced plans to restructure the\\nassembly line. While Booth and his co-workers on the line had performed two discrete jobs,\\nNissan wanted to modify the line so that workers would perform four jobs. Booth alleges that\\nthe two additional jobs Nissan assigned to him would have violated his work restrictions—and\\nthat when he informed Nissan about this conflict, Nissan told him to see a physician to assess\\nwhether he still needed the restrictions. Booth followed that request, and his physician modified\\nthe restrictions, clearing him to work all four jobs. Although Booth remains a Nissan employee,\\nhe claims that Nissan failed to accommodate him—a separate violation of the ADA—by\\npressuring him to remove his work restrictions.\\n\\n Of course, to sue under the ADA, the plaintiff must be disabled. And just because a\\nplaintiff has work restrictions does not mean that he is disabled. Because Booth has not\\nadvanced evidence that he is disabled under the ADA (among other reasons), his claims fail. We\\nAFFIRM the district court’s decision granting summary judgment to Nissan.\\n\\n I.\\n\\n After Booth had begun working at Nissan, he injured his neck in October 2004. Booth\\nvisited his physician, who issued a report recommending several permanent work restrictions,\\nincluding that (1) Booth work overhead or above his shoulders no more than 33% of the time;\\nand (2) Booth flex or extend his neck no more than 66% of the time. Those restrictions did not\\naffect Booth’s day-to-day job duties: Booth explained that “[f]rom 2004 through 2015, [he]\\nworked within his original 2005 restrictions.” (R. 32, Pl.’s Resp. to Statement of Material Facts\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 3\\n\\n\\nat ¶ 9.) In April 2014, Nissan transferred Booth to a different part of the assembly line, the “door\\nline,” but Booth’s work restrictions did not interfere with his work there, either.\\n\\n This appeal concerns two events that occurred about a decade after Booth’s physician\\nrecommended the work restrictions: (1) Booth’s requested transfer to a material handling\\nposition; and (2) Booth’s transition on the door line from a two-job position to a four-job\\nposition. We consider each event below.\\n\\n Material Handling Transfer. Sometime in September or October 2015, Booth requested\\na transfer to a material handling position. If Nissan had granted the transfer, Booth would not\\nhave seen any changes to his pay or benefits. But Booth alleges that the material handling\\nposition was less stressful and thus more desirable than his position on the line. Nissan refers\\ninternally to the material handling role as a “preferred” position that it awards to applicants based\\non seniority and their ability to perform the position’s essential functions.\\n\\n Nissan denied Booth’s transfer request. In November 2015, Nissan human resources\\nrepresentative Darron Keith informed Booth that although he had enough seniority to apply for\\nthe material handling position, his work restrictions conflicted with the position’s requirements.\\nBooth, however, insisted that he could perform the role without violating his restrictions, and\\nasked to speak about Nissan’s decision with other supervisors. The next month, Booth met with\\nDebbie Nelson, a manager in Nissan’s medical department, to discuss why Nissan had denied his\\ntransfer request. Once again, Booth heard that his work restrictions conflicted with the duties of\\nthe material handling role. Not satisfied with that explanation, Booth continued to pursue the\\nmatter with his supervisors; in October 2016, Booth met with Randy Knight, a Nissan senior\\nmanager, to discuss why Nissan denied his transfer application. Knight promised to get back to\\nBooth, but in the interim, Booth remained in his position on the line.\\n\\n Door Line Transition. When Booth arrived at the door line in 2014, workers there had to\\nperform two discrete jobs. For Booth, that meant installing the right-side water shield and the\\nleft-side regulator. But around the time Booth requested the transfer, Nissan announced plans to\\noverhaul its assembly lines, including the door line. Rather than perform two discrete\\ninstallation jobs, door line workers would have to install four components of a car. In Booth’s\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 4\\n\\n\\ncase, Nissan wanted him to start installing the left-side door glass and left-side door panel along\\nwith the two jobs he was already performing. When Booth met with Darron Keith in November\\n2015 to discuss the material handling position, he told Keith that the two new installation jobs\\nNissan wanted him to perform would violate his work restrictions and again requested to transfer\\nto the material handling position, which Booth described as “an easier and simpler job.” (R. 25–\\n2, Booth Dep. at 36:7–13.)\\n\\n In September 2016, Nissan started implementing the announced changes to its assembly\\nlines. So once more, Booth warned Nissan management—including his direct supervisor Randy\\nWiseman—that his work restrictions might prevent him from performing all four jobs on the\\ndoor line. In response, Nissan inquired with its insurer whether Booth could perform any of the\\njobs on the door line. Nissan soon learned that no such jobs existed, so Nissan kept Booth in his\\ntwo-job position for the time being.\\n\\n Later that fall, Nissan supervisors began to express concern that Booth’s restrictions\\nwould interfere with his ability to remain on the door line—even in his two-job position.\\nAccording to Booth, Randy Knight suggested that the two jobs Booth was already performing—\\ninstalling the right-side rear water shield and the left-side regulator—conflicted with his work\\nrestrictions. Later, Knight warned Booth that Nissan was “not going to have a job for [him]”\\nunless he changed the work restrictions. (R. 31–6, Booth Dep. at 98:20–25.) To prevent that\\nfrom happening, several Nissan employees—including Knight and Wiseman—encouraged\\nBooth to see a physician to determine whether his restrictions were still medically necessary.\\nEmail correspondence between Nissan supervisors reflects the same concern. In November\\n2016, Nissan senior manager Mark LaCroix emailed a colleague to explain that Booth’s\\nrestrictions do not “clea[r] him to run any jobs in the plant” and that Nissan advised Booth “of\\nthe steps he would need to take in order to possibly improve his current standings in regards to\\nhis restrictions.” (R. 31–5, Email.) LaCroix followed up on his email in January 2017, noting\\nthat Nissan “continued to let [Booth] work in his current pod, but we can’t continue to do that if\\nhe doesn’t get his Perm Restrictions modified to clear him for duty.” (Id.) And Nissan human\\nresources manager Bill Slagle responded that while Booth had scheduled several medical\\nappointments to reevaluate his restrictions, he “needs to be refreshed on the urgency and need for\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 5\\n\\n\\nthe medical clinic to assess the findings of the doctor and make a determination regarding his\\ncurrent restrictions.” (Id.)\\n\\n Booth ultimately met with a physician, who performed a functional capacity test and\\nissued a report modifying Booth’s work restrictions. Under Booth’s 2005 work restrictions, he\\ncould not flex his neck more than 66% of the time, but the physician removed that restriction\\nentirely. The physician maintained the restrictions that limited Booth’s overhead activity and\\nreaching to no more than 33% of the time. But while Booth’s 2005 restrictions applied to both\\nhis right and left side, the physician limited the restrictions only to activity on Booth’s left side.\\nBooth testified that he has no disagreement with his physician’s revisions to his work\\nrestrictions.\\n\\n After Booth informed his supervisors about the revised work restrictions, Nissan\\ndetermined that he could work the full, four-job position without violating his work restrictions.\\nIn February 2017, Nissan cleared Booth to work on the assembly line, and Booth’s counsel\\nstated at oral argument that Booth continues to work there.\\n\\n This litigation dates to November 2016, when Booth filed an intake questionnaire with\\nthe Equal Employment Opportunity Commission in which he alleged disability discrimination.\\nBooth then filed a formal charge with the Tennessee Human Rights Commission in December\\n2016, alleging disability discrimination and retaliation. The EEOC dismissed Booth’s charge\\nafter concluding that Booth had not supplied sufficient information to establish an ADA\\nviolation. So Booth filed this lawsuit in the Middle District of Tennessee, alleging failure-to-\\naccommodate and disability discrimination, both in violation of the ADA, and a state law\\nworkers’ compensation retaliation claim. Nissan moved for summary judgment, which the\\ndistrict court granted. Booth appeals the district court’s dismissal of his ADA claims.1\\n\\n II.\\n\\n We review a district court’s summary judgment decision de novo. Auburn Sales, Inc. v.\\nCypros Trading & Shipping, Inc., 898 F.3d 710, 715 (6th Cir. 2018). In doing so, we must view\\n\\n 1Booth did not appeal the district court’s dismissal of his workers’ compensation retaliation claim so we do\\nnot address that issue.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 6\\n\\n\\nthe evidence and draw all inferences in the light most favorable to Booth, the nonmoving party,\\nto determine whether there is a genuine issue of material fact. Henschel v. Clare Cty. Rd.\\nComm’n, 737 F.3d 1017, 1022 (6th Cir. 2013). If there is, summary judgment is improper. Id.\\n\\n A.\\n\\n Booth’s first claim is that Nissan engaged in disability discrimination when it denied his\\nrequested transfer to the material handling role. But before we can consider the merits of that\\nclaim, we first address Nissan’s argument that the claim is untimely. Booth’s claim arises under\\nthe ADA, which imposes several procedural requirements before plaintiffs may turn to federal\\ncourt for relief. Bullington v. Bedford Cty., 905 F.3d 467, 469 (6th Cir. 2018). One such\\nrequirement relates to timeliness: the plaintiff must first file a charge describing the alleged\\ndiscrimination, either with the EEOC or with an equivalent state agency, before he can litigate\\nthe claim in court. Cox v. City of Memphis, 230 F.3d 199, 202 n.2 (6th Cir. 2000). If the\\nplaintiff files his charge directly with the EEOC, he must do so within 180 days of the alleged\\ndiscrimination; if he chooses instead to file the charge with an equivalent state agency, he has\\n300 days from the alleged discrimination. See 42 U.S.C. § 12117; 42 U.S.C. § 2000e-5; Block v.\\nMeharry Med. Coll., 723 F. App’x 273, 277 (6th Cir. 2018).\\n\\n Booth filed his charge with the Tennessee Human Rights Commission on December 9,\\n2016, so for his claim to be timely, the alleged discrimination must have occurred sometime\\nwithin 300 days of December 9, 2016. Thus, our task is to determine when the alleged\\ndiscrimination occurred. According to Nissan, the 300-day deadline for Booth to file his charge\\nbegan sometime in November 2015, when Nissan supervisor Darron Keith informed Booth that\\nNissan had rejected his transfer request. If Nissan is correct, then Booth’s claim is untimely:\\neven if Keith told Booth about the decision on November 30, 2015, Booth still waited more than\\n300 days before filing his charge. Booth, however, argues that Nissan did not make a final\\ndecision about his transfer request until sometime in October or November 2016—and that his\\ncharge is therefore timely.\\n\\n We find Nissan’s argument persuasive. Booth has advanced no evidence to suggest that\\nNissan’s denial of his transfer request in November 2015 was anything but a final decision.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 7\\n\\n\\nTrue, Booth requested to speak with other supervisors after learning that Nissan had denied his\\ntransfer, and Nissan granted that request. But Nissan’s decision was no less final, simply\\nbecause Nissan supervisors explained the company’s decision to Booth several times in 2015 and\\n2016. Those discussions did not reset the 300-day deadline to file the charge.\\n\\n We considered a similar issue in Hall v. The Scotts Co., in which the plaintiff sued his\\nemployer under the ADA after his employer refused to purchase special respirator equipment\\nthat would have allowed him to operate a forklift. 211 F. App’x 361 (6th Cir. 2006). The\\nemployer announced its decision to not purchase the equipment in August 2003, citing safety\\nconcerns. Id. at 362. In November, the plaintiff offered to purchase the equipment himself if it\\nmeant that he could operate the forklift, but the employer declined that offer in December. Id.\\nThe plaintiff then filed a charge in October 2004 and later filed a complaint in federal court. We\\nheld that the claim was untimely because the allegedly discriminatory act occurred in August\\n2003, when the employer first denied the plaintiff’s requested accommodation, and we described\\nthe plaintiff’s later request as “simply an impotent attempt to renew his earlier request” rather\\nthan the “culmination of an interactive process to accommodate his disability.” Id. at 363\\n(internal quotation marks omitted). Our reasoning in Hall applies with equal force here. Booth\\nhad 300 days to file a charge from November 2015, when Keith informed him that Nissan denied\\nhis transfer request. Even if we assume that Keith notified Booth on the last day of November,\\nBooth’s charge would still be late. Thus, Booth cannot pursue his disability discrimination claim\\nin federal court.\\n\\n If Booth had satisfied the ADA’s procedural requirements, his disability discrimination\\nclaim would still fail because Booth has not supplied evidence to suggest that he is disabled.\\nThe ADA forbids employers from discriminating “against a qualified individual on the basis of\\ndisability in regard to job application procedures, the hiring, advancement, or discharge of\\nemployees, employee compensation, job training, and other terms, conditions, and privileges of\\nemployment.” 42 U.S.C. § 12112(a). So to establish a prima facie claim for disability\\ndiscrimination, the plaintiff must show that:\\n\\n 1) he or she is disabled; 2) otherwise qualified for the position, with or without\\n reasonable accommodation; 3) suffered an adverse employment decision; 4) the\\n employer knew or had reason to know of the plaintiff’s disability, and 5) the\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 8\\n\\n\\n position remained open while the employer sought other applicants or the\\n disabled individual was replaced.\\n\\nWhitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011) (internal quotation marks and citations\\nomitted; emphasis added). And to prove that he is disabled, Booth must show that he has (1) “a\\nphysical or mental impairment that substantially limits one or more major life activities,” (2) “a\\nrecord of such an impairment,” or (3) “[is] regarded as having such an impairment[.]” 42 U.S.C.\\n§ 12102(1); see also Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir.\\n2008). Finally, “working” is an example of a major life activity. 42 U.S.C. § 12102(2)(A).\\n\\n Booth seems to assume that because he has work restrictions and because Nissan denied\\nhis transfer request because of those restrictions, he is disabled under the ADA. And he states\\nthat Nissan “do[es] not dispute [his] disability or need for accommodation.” (Appellant Br. 13.)\\nIn fact, the record suggests that Nissan has vigorously disputed the issue: Nissan argued in its\\nsummary judgment motion before the district court that Booth is not disabled under the ADA,\\nand Nissan raised that argument again in its brief to this court.2 Indeed, Nissan argues that\\nBooth is not disabled under the ADA and that his disability discrimination claim therefore fails.\\n\\n Several of our published decisions support Nissan’s position. We have held that simply\\nhaving a work restriction does not automatically render one disabled, McKay v. Toyota Motor\\nMfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997), nor does being unable to perform a discrete\\ntask or a specific job. Id.; see also Mahon v. Crowell, 295 F.3d 585, 591 (6th Cir. 2002). But as\\nBooth’s counsel noted at oral argument, those cases predate Congress’s 2008 amendments to the\\nADA, which reflected a direct response to the Supreme Court’s “narrow interpretation of what\\nconstitutes a disability.” Robbins v. Saturn Corp., 532 F. App’x 623, 628 (6th Cir. 2013). In\\namending the statute, Congress instructed courts that the “definition of disability . . . shall be\\nconstrued in favor of broad coverage of individuals,” 42 U.S.C. § 12102(4)(A), and the statute\\nnow underscores that an impairment that “substantially limits one major life activity need not\\nlimit other major life activities in order to be considered a disability.” Id. § 12102(4)(C).\\n\\n\\n\\n2 The district court did not address Nissan’s argument that Booth is not disabled and instead dismissed Booth’s\\nclaims on other grounds.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 9\\n\\n\\n Even so, Congress did not modify the definition of the major life activity of working, and\\na plaintiff who alleges a work-related disability “is still required to show that her impairment\\nlimits her ability to ‘perform a class of jobs or broad range of jobs.’” Tinsley v. Caterpillar Fin.\\nServs., Corp., No. 18-5303, 2019 WL 1302189, at *5 (6th Cir. Mar. 20, 2019) (quoting 29\\nC.F.R. § 1630, App. (2016)); accord Mancini v. City of Providence, 909 F.3d 32, 42 n.6 (1st Cir.\\n2018); Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015); Allen v. SouthCrest\\nHosp., 455 F. App’x 827, 835 (10th Cir. 2011). EEOC regulations explain that a plaintiff cannot\\nclaim a disability by simply “[d]emonstrating a substantial limitation in performing the unique\\naspects of a single specific job.” 29 C.F.R. § 1630, App. (2016). That Booth’s neck injury and\\nrelated work restrictions kept him from working in the material handling role does not resolve\\nwhether Booth is disabled under the ADA. Rather than point to one job that he cannot perform,\\na plaintiff alleging a work-related disability must show that his condition precludes him from\\nworking in a class or broad range of jobs, “such as . . . assembly line jobs.” Id. Booth has not\\nmade that showing. To the contrary, Booth concedes that he has worked without interruption on\\nthe assembly line since injuring his neck in 2004—and has continued to work there since this\\nlitigation began.\\n\\n Moreover, Booth does not argue that Nissan denied his transfer request because it\\nregarded him as disabled. Nor could he. Under the ADA, an employee:\\n\\n meets the requirement of “being regarded as having such an impairment” if the\\n individual establishes that he or she has been subjected to an action prohibited\\n under this chapter because of an actual or perceived physical or mental\\n impairment whether or not the impairment limits or is perceived to limit a major\\n life activity.\\n\\n42 U.S.C. § 12102(3)(A). In other words, a plaintiff may seek relief under the ADA if his\\nemployer mistakenly believes that he is substantially limited from performing a major life\\nactivity, such as work. Ferrari v. Ford Motor Co., 826 F.3d 885, 893 (6th Cir. 2016). In\\nFerrari, a decision following Congress’s 2008 amendments to the ADA, we considered whether\\nthe plaintiff’s employer regarded him as disabled. Id. at 892–93. The plaintiff in that case\\nworked on a Ford assembly line and became eligible for a transfer to a skilled trade\\napprenticeship, provided he passed a medical examination to ensure that he could perform the\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 10\\n\\n\\nrole. Id. at 889. That proved to be a problem: the plaintiff had injured his neck and treated the\\ninjury with prescription opioids, yet the apprenticeship would have required him to work\\nregularly overhead and climb 50-foot ladders. Id. Ford concluded that the plaintiff’s opioid use\\nprecluded him from holding the apprenticeship position and placed him instead in a machining\\nposition that met his restrictions. Id. at 890–91. We rejected the plaintiff’s argument that Ford\\nregarded him as disabled, noting that Ford had placed the plaintiff in “both clerical and assembly\\npositions” and that Ford had “only barred [the plaintiff] from a single, particular job—the [ ]\\napprenticeship.” Id. at 893. Thus, we concluded that the evidence did not show that Ford\\nregarded the plaintiff’s restrictions “as a substantial impairment on the major life activity of\\nworking.” Id. at 894. For these same reasons, Booth has not shown that Nissan regarded him as\\ndisabled when it denied his transfer request (while employing him on the assembly line all\\nalong).\\n\\n At summary judgment, we must draw all inferences and view all evidence in the light\\nmost favorable to Booth, the nonmoving party. Henschel, 737 F.3d at 1022. But if the moving\\nparty shows the lack of a genuine issue of material fact on an element of the nonmoving party’s\\ncase, the nonmoving party must set forth specific facts showing a triable issue. Hedrick v.\\nWestern Reserve Care Sys., 355 F.3d 444, 451–52 (6th Cir. 2004). Because Booth has advanced\\nno evidence of his disability beyond his work restrictions, he cannot show that he is disabled and\\nhas therefore failed to carry his burden at summary judgment. We affirm the district court’s\\ngrant of summary judgment on that claim.\\n\\n B.\\n\\n Booth brings a separate claim under the ADA, alleging that Nissan failed to\\naccommodate his disability after it modified its assembly lines. The thrust of Booth’s argument\\nis that Nissan pressured him to remove his work restrictions—and, indeed, warned that there\\nwould be no jobs for him at the factory—rather than accommodate his limitations.\\n\\n Unlike his disability discrimination claim, Booth’s failure-to-accommodate claim is\\ntimely because the alleged conduct underlying this claim continued even after Booth filed his\\ncharge with the Tennessee Human Rights Commission. Thus, we consider the merits of Booth’s\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 11\\n\\n\\nclaim. Generally, there are two ways to prove disability discrimination—either directly or\\nindirectly. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018) (citing Ferrari,\\n826 F.3d at 891). The type of evidence (direct or indirect) that the plaintiff must provide—and\\nthe test that governs the plaintiff’s claim—depends on the nature of the claim. Here, failure-to-\\naccommodate claims “necessarily involve direct evidence (the failure to accommodate) of\\ndiscrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (citing\\nBultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996)); see also E.E.O.C. v.\\nDolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018) (“And failing to provide a protected\\nemployee a reasonable accommodation constitutes direct evidence of discrimination.”) So to\\nbring a claim for failure-to-accommodate, the plaintiff must provide direct evidence that he\\nsuffered an adverse employment action because of his disability. Ferrari, 826 F.3d at 891.\\n\\n Under the direct method of proof, the plaintiff must prove that (1) he is disabled under\\nthe ADA; and (2) he is otherwise qualified for the position, despite his disability, “(a) without\\naccommodation from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or\\n(c) with a proposed reasonable accommodation.” Ferrari, 826 F.3d at 891 (citation omitted).\\nIf the plaintiff proves those elements, his employer must then show that “a challenged job\\ncriterion is essential . . . or that a proposed accommodation will impose an undue hardship.” Id.\\n(citation omitted).\\n\\n Like his disability discrimination claim, Booth’s failure-to-accommodate claim fails out\\nof the gate because he has not advanced an argument, supported by evidence, that he is disabled\\nunder the ADA.3 But even setting the disability element aside, Booth’s failure-to-accommodate\\nclaim fails for a separate reason: Nissan never failed to accommodate Booth. Nissan allowed\\nBooth to remain in the two-job position after he alerted his supervisors that the two new tasks\\nNissan wanted him to perform conflicted with his work restrictions. And Booth remained in that\\nrole while he sought medical advice about his work restrictions. Nissan did not move Booth\\nfrom the two-job position until it reviewed his doctor’s report and determined that his work\\n\\n\\n 3We note that this issue would have been closer, had Booth argued that Nissan regarded him as disabled\\nwhen it warned Booth that he would be jobless unless he changed his work restrictions. But Booth does not make\\nthis argument in his brief, and in any event, his failure-to-accommodate claim fails for separate reasons.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 12\\n\\n\\nrestrictions did not conflict with the modified positions on the assembly line. Nor does Booth\\nsuggest that he misreported his symptoms or otherwise encouraged his doctor to modify the\\nrestrictions in order to preserve his job. To the contrary, Booth testified that he does not disagree\\nwith his doctor’s revisions to his work restrictions. So Booth’s claim also fails because he has\\noffered no evidence that Nissan failed to accommodate him.\\n\\n III.\\n\\n For these reasons, we AFFIRM the district court’s summary judgment decision.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4404705/\", \"author_raw\": \"NALBANDIAN, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"GUY"},"judge2":{"kind":"string","value":"SUTTON"},"judge3":{"kind":"string","value":"NALBANDIAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627452/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Michael Adam BOOTH, Plaintiff-Appellant, v. NISSAN NORTH AMERICA, INC., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0119p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n MICHAEL ADAM BOOTH, ┐\n Plaintiff-Appellant, │\n │\n > No. 18-5985\n v. │\n │\n │\n NISSAN NORTH AMERICA, INC., │\n Defendant-Appellee. │\n ┘\n\n Appeal from the United States District Court\n for the Middle District of Tennessee at Nashville.\n No. 3:17-cv-00755—William Lynn Campbell, Jr., District Judge.\n\n Argued: April 30, 2019\n\n Decided and Filed: June 7, 2019\n\n Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Constance Mann, THE LAW OFFICES OF CONSTANCE MANN, Franklin,\nTennessee, for Appellant. Stanley E. Graham, WALLER LANSDEN DORTCH & DAVIS,\nLLP, Nashville, Tennessee, for Appellee. ON BRIEF: Constance Mann, THE LAW OFFICES\nOF CONSTANCE MANN, Franklin, Tennessee, for Appellant. Stanley E. Graham, Brittany\nStancombe Hopper, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, for\nAppellee.\n _________________\n\n OPINION\n _________________\n\n NALBANDIAN, Circuit Judge. After Michael Booth started working at a Nissan factory\nin Tennessee, he injured his neck and sought medical treatment. Booth’s physician\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 2\n\n\nrecommended several work restrictions, including that he not reach above his head or flex his\nneck too much, but the restrictions did not sideline Booth. Indeed, he continued to work on the\nassembly line for about a decade without incident. But in 2015, the work restrictions became\nrelevant again. Booth requested a transfer to a different position in the factory, which Nissan\ndenied because that position’s duties conflicted with Booth’s work restrictions. Booth contends\nthat Nissan’s denial was disability discrimination that violated the Americans with Disabilities\nAct (“ADA”), 42 U.S.C. §§ 12101 et seq.\n\n Soon after Booth requested the transfer, Nissan announced plans to restructure the\nassembly line. While Booth and his co-workers on the line had performed two discrete jobs,\nNissan wanted to modify the line so that workers would perform four jobs. Booth alleges that\nthe two additional jobs Nissan assigned to him would have violated his work restrictions—and\nthat when he informed Nissan about this conflict, Nissan told him to see a physician to assess\nwhether he still needed the restrictions. Booth followed that request, and his physician modified\nthe restrictions, clearing him to work all four jobs. Although Booth remains a Nissan employee,\nhe claims that Nissan failed to accommodate him—a separate violation of the ADA—by\npressuring him to remove his work restrictions.\n\n Of course, to sue under the ADA, the plaintiff must be disabled. And just because a\nplaintiff has work restrictions does not mean that he is disabled. Because Booth has not\nadvanced evidence that he is disabled under the ADA (among other reasons), his claims fail. We\nAFFIRM the district court’s decision granting summary judgment to Nissan.\n\n I.\n\n After Booth had begun working at Nissan, he injured his neck in October 2004. Booth\nvisited his physician, who issued a report recommending several permanent work restrictions,\nincluding that (1) Booth work overhead or above his shoulders no more than 33% of the time;\nand (2) Booth flex or extend his neck no more than 66% of the time. Those restrictions did not\naffect Booth’s day-to-day job duties: Booth explained that “[f]rom 2004 through 2015, [he]\nworked within his original 2005 restrictions.” (R. 32, Pl.’s Resp. to Statement of Material Facts\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 3\n\n\nat ¶ 9.) In April 2014, Nissan transferred Booth to a different part of the assembly line, the “door\nline,” but Booth’s work restrictions did not interfere with his work there, either.\n\n This appeal concerns two events that occurred about a decade after Booth’s physician\nrecommended the work restrictions: (1) Booth’s requested transfer to a material handling\nposition; and (2) Booth’s transition on the door line from a two-job position to a four-job\nposition. We consider each event below.\n\n Material Handling Transfer. Sometime in September or October 2015, Booth requested\na transfer to a material handling position. If Nissan had granted the transfer, Booth would not\nhave seen any changes to his pay or benefits. But Booth alleges that the material handling\nposition was less stressful and thus more desirable than his position on the line. Nissan refers\ninternally to the material handling role as a “preferred” position that it awards to applicants based\non seniority and their ability to perform the position’s essential functions.\n\n Nissan denied Booth’s transfer request. In November 2015, Nissan human resources\nrepresentative Darron Keith informed Booth that although he had enough seniority to apply for\nthe material handling position, his work restrictions conflicted with the position’s requirements.\nBooth, however, insisted that he could perform the role without violating his restrictions, and\nasked to speak about Nissan’s decision with other supervisors. The next month, Booth met with\nDebbie Nelson, a manager in Nissan’s medical department, to discuss why Nissan had denied his\ntransfer request. Once again, Booth heard that his work restrictions conflicted with the duties of\nthe material handling role. Not satisfied with that explanation, Booth continued to pursue the\nmatter with his supervisors; in October 2016, Booth met with Randy Knight, a Nissan senior\nmanager, to discuss why Nissan denied his transfer application. Knight promised to get back to\nBooth, but in the interim, Booth remained in his position on the line.\n\n Door Line Transition. When Booth arrived at the door line in 2014, workers there had to\nperform two discrete jobs. For Booth, that meant installing the right-side water shield and the\nleft-side regulator. But around the time Booth requested the transfer, Nissan announced plans to\noverhaul its assembly lines, including the door line. Rather than perform two discrete\ninstallation jobs, door line workers would have to install four components of a car. In Booth’s\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 4\n\n\ncase, Nissan wanted him to start installing the left-side door glass and left-side door panel along\nwith the two jobs he was already performing. When Booth met with Darron Keith in November\n2015 to discuss the material handling position, he told Keith that the two new installation jobs\nNissan wanted him to perform would violate his work restrictions and again requested to transfer\nto the material handling position, which Booth described as “an easier and simpler job.” (R. 25–\n2, Booth Dep. at 36:7–13.)\n\n In September 2016, Nissan started implementing the announced changes to its assembly\nlines. So once more, Booth warned Nissan management—including his direct supervisor Randy\nWiseman—that his work restrictions might prevent him from performing all four jobs on the\ndoor line. In response, Nissan inquired with its insurer whether Booth could perform any of the\njobs on the door line. Nissan soon learned that no such jobs existed, so Nissan kept Booth in his\ntwo-job position for the time being.\n\n Later that fall, Nissan supervisors began to express concern that Booth’s restrictions\nwould interfere with his ability to remain on the door line—even in his two-job position.\nAccording to Booth, Randy Knight suggested that the two jobs Booth was already performing—\ninstalling the right-side rear water shield and the left-side regulator—conflicted with his work\nrestrictions. Later, Knight warned Booth that Nissan was “not going to have a job for [him]”\nunless he changed the work restrictions. (R. 31–6, Booth Dep. at 98:20–25.) To prevent that\nfrom happening, several Nissan employees—including Knight and Wiseman—encouraged\nBooth to see a physician to determine whether his restrictions were still medically necessary.\nEmail correspondence between Nissan supervisors reflects the same concern. In November\n2016, Nissan senior manager Mark LaCroix emailed a colleague to explain that Booth’s\nrestrictions do not “clea[r] him to run any jobs in the plant” and that Nissan advised Booth “of\nthe steps he would need to take in order to possibly improve his current standings in regards to\nhis restrictions.” (R. 31–5, Email.) LaCroix followed up on his email in January 2017, noting\nthat Nissan “continued to let [Booth] work in his current pod, but we can’t continue to do that if\nhe doesn’t get his Perm Restrictions modified to clear him for duty.” (Id.) And Nissan human\nresources manager Bill Slagle responded that while Booth had scheduled several medical\nappointments to reevaluate his restrictions, he “needs to be refreshed on the urgency and need for\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 5\n\n\nthe medical clinic to assess the findings of the doctor and make a determination regarding his\ncurrent restrictions.” (Id.)\n\n Booth ultimately met with a physician, who performed a functional capacity test and\nissued a report modifying Booth’s work restrictions. Under Booth’s 2005 work restrictions, he\ncould not flex his neck more than 66% of the time, but the physician removed that restriction\nentirely. The physician maintained the restrictions that limited Booth’s overhead activity and\nreaching to no more than 33% of the time. But while Booth’s 2005 restrictions applied to both\nhis right and left side, the physician limited the restrictions only to activity on Booth’s left side.\nBooth testified that he has no disagreement with his physician’s revisions to his work\nrestrictions.\n\n After Booth informed his supervisors about the revised work restrictions, Nissan\ndetermined that he could work the full, four-job position without violating his work restrictions.\nIn February 2017, Nissan cleared Booth to work on the assembly line, and Booth’s counsel\nstated at oral argument that Booth continues to work there.\n\n This litigation dates to November 2016, when Booth filed an intake questionnaire with\nthe Equal Employment Opportunity Commission in which he alleged disability discrimination.\nBooth then filed a formal charge with the Tennessee Human Rights Commission in December\n2016, alleging disability discrimination and retaliation. The EEOC dismissed Booth’s charge\nafter concluding that Booth had not supplied sufficient information to establish an ADA\nviolation. So Booth filed this lawsuit in the Middle District of Tennessee, alleging failure-to-\naccommodate and disability discrimination, both in violation of the ADA, and a state law\nworkers’ compensation retaliation claim. Nissan moved for summary judgment, which the\ndistrict court granted. Booth appeals the district court’s dismissal of his ADA claims.1\n\n II.\n\n We review a district court’s summary judgment decision de novo. Auburn Sales, Inc. v.\nCypros Trading & Shipping, Inc., 898 F.3d 710, 715 (6th Cir. 2018). In doing so, we must view\n\n 1Booth did not appeal the district court’s dismissal of his workers’ compensation retaliation claim so we do\nnot address that issue.\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 6\n\n\nthe evidence and draw all inferences in the light most favorable to Booth, the nonmoving party,\nto determine whether there is a genuine issue of material fact. Henschel v. Clare Cty. Rd.\nComm’n, 737 F.3d 1017, 1022 (6th Cir. 2013). If there is, summary judgment is improper. Id.\n\n A.\n\n Booth’s first claim is that Nissan engaged in disability discrimination when it denied his\nrequested transfer to the material handling role. But before we can consider the merits of that\nclaim, we first address Nissan’s argument that the claim is untimely. Booth’s claim arises under\nthe ADA, which imposes several procedural requirements before plaintiffs may turn to federal\ncourt for relief. Bullington v. Bedford Cty., 905 F.3d 467, 469 (6th Cir. 2018). One such\nrequirement relates to timeliness: the plaintiff must first file a charge describing the alleged\ndiscrimination, either with the EEOC or with an equivalent state agency, before he can litigate\nthe claim in court. Cox v. City of Memphis, 230 F.3d 199, 202 n.2 (6th Cir. 2000). If the\nplaintiff files his charge directly with the EEOC, he must do so within 180 days of the alleged\ndiscrimination; if he chooses instead to file the charge with an equivalent state agency, he has\n300 days from the alleged discrimination. See 42 U.S.C. § 12117; 42 U.S.C. § 2000e-5; Block v.\nMeharry Med. Coll., 723 F. App’x 273, 277 (6th Cir. 2018).\n\n Booth filed his charge with the Tennessee Human Rights Commission on December 9,\n2016, so for his claim to be timely, the alleged discrimination must have occurred sometime\nwithin 300 days of December 9, 2016. Thus, our task is to determine when the alleged\ndiscrimination occurred. According to Nissan, the 300-day deadline for Booth to file his charge\nbegan sometime in November 2015, when Nissan supervisor Darron Keith informed Booth that\nNissan had rejected his transfer request. If Nissan is correct, then Booth’s claim is untimely:\neven if Keith told Booth about the decision on November 30, 2015, Booth still waited more than\n300 days before filing his charge. Booth, however, argues that Nissan did not make a final\ndecision about his transfer request until sometime in October or November 2016—and that his\ncharge is therefore timely.\n\n We find Nissan’s argument persuasive. Booth has advanced no evidence to suggest that\nNissan’s denial of his transfer request in November 2015 was anything but a final decision.\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 7\n\n\nTrue, Booth requested to speak with other supervisors after learning that Nissan had denied his\ntransfer, and Nissan granted that request. But Nissan’s decision was no less final, simply\nbecause Nissan supervisors explained the company’s decision to Booth several times in 2015 and\n2016. Those discussions did not reset the 300-day deadline to file the charge.\n\n We considered a similar issue in Hall v. The Scotts Co., in which the plaintiff sued his\nemployer under the ADA after his employer refused to purchase special respirator equipment\nthat would have allowed him to operate a forklift. 211 F. App’x 361 (6th Cir. 2006). The\nemployer announced its decision to not purchase the equipment in August 2003, citing safety\nconcerns. Id. at 362. In November, the plaintiff offered to purchase the equipment himself if it\nmeant that he could operate the forklift, but the employer declined that offer in December. Id.\nThe plaintiff then filed a charge in October 2004 and later filed a complaint in federal court. We\nheld that the claim was untimely because the allegedly discriminatory act occurred in August\n2003, when the employer first denied the plaintiff’s requested accommodation, and we described\nthe plaintiff’s later request as “simply an impotent attempt to renew his earlier request” rather\nthan the “culmination of an interactive process to accommodate his disability.” Id. at 363\n(internal quotation marks omitted). Our reasoning in Hall applies with equal force here. Booth\nhad 300 days to file a charge from November 2015, when Keith informed him that Nissan denied\nhis transfer request. Even if we assume that Keith notified Booth on the last day of November,\nBooth’s charge would still be late. Thus, Booth cannot pursue his disability discrimination claim\nin federal court.\n\n If Booth had satisfied the ADA’s procedural requirements, his disability discrimination\nclaim would still fail because Booth has not supplied evidence to suggest that he is disabled.\nThe ADA forbids employers from discriminating “against a qualified individual on the basis of\ndisability in regard to job application procedures, the hiring, advancement, or discharge of\nemployees, employee compensation, job training, and other terms, conditions, and privileges of\nemployment.” 42 U.S.C. § 12112(a). So to establish a prima facie claim for disability\ndiscrimination, the plaintiff must show that:\n\n 1) he or she is disabled; 2) otherwise qualified for the position, with or without\n reasonable accommodation; 3) suffered an adverse employment decision; 4) the\n employer knew or had reason to know of the plaintiff’s disability, and 5) the\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 8\n\n\n position remained open while the employer sought other applicants or the\n disabled individual was replaced.\n\nWhitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011) (internal quotation marks and citations\nomitted; emphasis added). And to prove that he is disabled, Booth must show that he has (1) “a\nphysical or mental impairment that substantially limits one or more major life activities,” (2) “a\nrecord of such an impairment,” or (3) “[is] regarded as having such an impairment[.]” 42 U.S.C.\n§ 12102(1); see also Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir.\n2008). Finally, “working” is an example of a major life activity. 42 U.S.C. § 12102(2)(A).\n\n Booth seems to assume that because he has work restrictions and because Nissan denied\nhis transfer request because of those restrictions, he is disabled under the ADA. And he states\nthat Nissan “do[es] not dispute [his] disability or need for accommodation.” (Appellant Br. 13.)\nIn fact, the record suggests that Nissan has vigorously disputed the issue: Nissan argued in its\nsummary judgment motion before the district court that Booth is not disabled under the ADA,\nand Nissan raised that argument again in its brief to this court.2 Indeed, Nissan argues that\nBooth is not disabled under the ADA and that his disability discrimination claim therefore fails.\n\n Several of our published decisions support Nissan’s position. We have held that simply\nhaving a work restriction does not automatically render one disabled, McKay v. Toyota Motor\nMfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997), nor does being unable to perform a discrete\ntask or a specific job. Id.; see also Mahon v. Crowell, 295 F.3d 585, 591 (6th Cir. 2002). But as\nBooth’s counsel noted at oral argument, those cases predate Congress’s 2008 amendments to the\nADA, which reflected a direct response to the Supreme Court’s “narrow interpretation of what\nconstitutes a disability.” Robbins v. Saturn Corp., 532 F. App’x 623, 628 (6th Cir. 2013). In\namending the statute, Congress instructed courts that the “definition of disability . . . shall be\nconstrued in favor of broad coverage of individuals,” 42 U.S.C. § 12102(4)(A), and the statute\nnow underscores that an impairment that “substantially limits one major life activity need not\nlimit other major life activities in order to be considered a disability.” Id. § 12102(4)(C).\n\n\n\n2 The district court did not address Nissan’s argument that Booth is not disabled and instead dismissed Booth’s\nclaims on other grounds.\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 9\n\n\n Even so, Congress did not modify the definition of the major life activity of working, and\na plaintiff who alleges a work-related disability “is still required to show that her impairment\nlimits her ability to ‘perform a class of jobs or broad range of jobs.’” Tinsley v. Caterpillar Fin.\nServs., Corp., No. 18-5303, 2019 WL 1302189, at *5 (6th Cir. Mar. 20, 2019) (quoting 29\nC.F.R. § 1630, App. (2016)); accord Mancini v. City of Providence, 909 F.3d 32, 42 n.6 (1st Cir.\n2018); Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015); Allen v. SouthCrest\nHosp., 455 F. App’x 827, 835 (10th Cir. 2011). EEOC regulations explain that a plaintiff cannot\nclaim a disability by simply “[d]emonstrating a substantial limitation in performing the unique\naspects of a single specific job.” 29 C.F.R. § 1630, App. (2016). That Booth’s neck injury and\nrelated work restrictions kept him from working in the material handling role does not resolve\nwhether Booth is disabled under the ADA. Rather than point to one job that he cannot perform,\na plaintiff alleging a work-related disability must show that his condition precludes him from\nworking in a class or broad range of jobs, “such as . . . assembly line jobs.” Id. Booth has not\nmade that showing. To the contrary, Booth concedes that he has worked without interruption on\nthe assembly line since injuring his neck in 2004—and has continued to work there since this\nlitigation began.\n\n Moreover, Booth does not argue that Nissan denied his transfer request because it\nregarded him as disabled. Nor could he. Under the ADA, an employee:\n\n meets the requirement of “being regarded as having such an impairment” if the\n individual establishes that he or she has been subjected to an action prohibited\n under this chapter because of an actual or perceived physical or mental\n impairment whether or not the impairment limits or is perceived to limit a major\n life activity.\n\n42 U.S.C. § 12102(3)(A). In other words, a plaintiff may seek relief under the ADA if his\nemployer mistakenly believes that he is substantially limited from performing a major life\nactivity, such as work. Ferrari v. Ford Motor Co., 826 F.3d 885, 893 (6th Cir. 2016). In\nFerrari, a decision following Congress’s 2008 amendments to the ADA, we considered whether\nthe plaintiff’s employer regarded him as disabled. Id. at 892–93. The plaintiff in that case\nworked on a Ford assembly line and became eligible for a transfer to a skilled trade\napprenticeship, provided he passed a medical examination to ensure that he could perform the\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 10\n\n\nrole. Id. at 889. That proved to be a problem: the plaintiff had injured his neck and treated the\ninjury with prescription opioids, yet the apprenticeship would have required him to work\nregularly overhead and climb 50-foot ladders. Id. Ford concluded that the plaintiff’s opioid use\nprecluded him from holding the apprenticeship position and placed him instead in a machining\nposition that met his restrictions. Id. at 890–91. We rejected the plaintiff’s argument that Ford\nregarded him as disabled, noting that Ford had placed the plaintiff in “both clerical and assembly\npositions” and that Ford had “only barred [the plaintiff] from a single, particular job—the [ ]\napprenticeship.” Id. at 893. Thus, we concluded that the evidence did not show that Ford\nregarded the plaintiff’s restrictions “as a substantial impairment on the major life activity of\nworking.” Id. at 894. For these same reasons, Booth has not shown that Nissan regarded him as\ndisabled when it denied his transfer request (while employing him on the assembly line all\nalong).\n\n At summary judgment, we must draw all inferences and view all evidence in the light\nmost favorable to Booth, the nonmoving party. Henschel, 737 F.3d at 1022. But if the moving\nparty shows the lack of a genuine issue of material fact on an element of the nonmoving party’s\ncase, the nonmoving party must set forth specific facts showing a triable issue. Hedrick v.\nWestern Reserve Care Sys., 355 F.3d 444, 451–52 (6th Cir. 2004). Because Booth has advanced\nno evidence of his disability beyond his work restrictions, he cannot show that he is disabled and\nhas therefore failed to carry his burden at summary judgment. We affirm the district court’s\ngrant of summary judgment on that claim.\n\n B.\n\n Booth brings a separate claim under the ADA, alleging that Nissan failed to\naccommodate his disability after it modified its assembly lines. The thrust of Booth’s argument\nis that Nissan pressured him to remove his work restrictions—and, indeed, warned that there\nwould be no jobs for him at the factory—rather than accommodate his limitations.\n\n Unlike his disability discrimination claim, Booth’s failure-to-accommodate claim is\ntimely because the alleged conduct underlying this claim continued even after Booth filed his\ncharge with the Tennessee Human Rights Commission. Thus, we consider the merits of Booth’s\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 11\n\n\nclaim. Generally, there are two ways to prove disability discrimination—either directly or\nindirectly. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018) (citing Ferrari,\n826 F.3d at 891). The type of evidence (direct or indirect) that the plaintiff must provide—and\nthe test that governs the plaintiff’s claim—depends on the nature of the claim. Here, failure-to-\naccommodate claims “necessarily involve direct evidence (the failure to accommodate) of\ndiscrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (citing\nBultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996)); see also E.E.O.C. v.\nDolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018) (“And failing to provide a protected\nemployee a reasonable accommodation constitutes direct evidence of discrimination.”) So to\nbring a claim for failure-to-accommodate, the plaintiff must provide direct evidence that he\nsuffered an adverse employment action because of his disability. Ferrari, 826 F.3d at 891.\n\n Under the direct method of proof, the plaintiff must prove that (1) he is disabled under\nthe ADA; and (2) he is otherwise qualified for the position, despite his disability, “(a) without\naccommodation from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or\n(c) with a proposed reasonable accommodation.” Ferrari, 826 F.3d at 891 (citation omitted).\nIf the plaintiff proves those elements, his employer must then show that “a challenged job\ncriterion is essential . . . or that a proposed accommodation will impose an undue hardship.” Id.\n(citation omitted).\n\n Like his disability discrimination claim, Booth’s failure-to-accommodate claim fails out\nof the gate because he has not advanced an argument, supported by evidence, that he is disabled\nunder the ADA.3 But even setting the disability element aside, Booth’s failure-to-accommodate\nclaim fails for a separate reason: Nissan never failed to accommodate Booth. Nissan allowed\nBooth to remain in the two-job position after he alerted his supervisors that the two new tasks\nNissan wanted him to perform conflicted with his work restrictions. And Booth remained in that\nrole while he sought medical advice about his work restrictions. Nissan did not move Booth\nfrom the two-job position until it reviewed his doctor’s report and determined that his work\n\n\n 3We note that this issue would have been closer, had Booth argued that Nissan regarded him as disabled\nwhen it warned Booth that he would be jobless unless he changed his work restrictions. But Booth does not make\nthis argument in his brief, and in any event, his failure-to-accommodate claim fails for separate reasons.\n\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 12\n\n\nrestrictions did not conflict with the modified positions on the assembly line. Nor does Booth\nsuggest that he misreported his symptoms or otherwise encouraged his doctor to modify the\nrestrictions in order to preserve his job. To the contrary, Booth testified that he does not disagree\nwith his doctor’s revisions to his work restrictions. So Booth’s claim also fails because he has\noffered no evidence that Nissan failed to accommodate him.\n\n III.\n\n For these reasons, we AFFIRM the district court’s summary judgment decision.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Michael Adam BOOTH, Plaintiff-Appellant, v. NISSAN NORTH AMERICA, INC., Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0119p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n MICHAEL ADAM BOOTH, ┐\\n Plaintiff-Appellant, │\\n │\\n > No. 18-5985\\n v. │\\n │\\n │\\n NISSAN NORTH AMERICA, INC., │\\n Defendant-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Middle District of Tennessee at Nashville.\\n No. 3:17-cv-00755—William Lynn Campbell, Jr., District Judge.\\n\\n Argued: April 30, 2019\\n\\n Decided and Filed: June 7, 2019\\n\\n Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Constance Mann, THE LAW OFFICES OF CONSTANCE MANN, Franklin,\\nTennessee, for Appellant. Stanley E. Graham, WALLER LANSDEN DORTCH & DAVIS,\\nLLP, Nashville, Tennessee, for Appellee. ON BRIEF: Constance Mann, THE LAW OFFICES\\nOF CONSTANCE MANN, Franklin, Tennessee, for Appellant. Stanley E. Graham, Brittany\\nStancombe Hopper, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, for\\nAppellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n NALBANDIAN, Circuit Judge. After Michael Booth started working at a Nissan factory\\nin Tennessee, he injured his neck and sought medical treatment. Booth’s physician\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 2\\n\\n\\nrecommended several work restrictions, including that he not reach above his head or flex his\\nneck too much, but the restrictions did not sideline Booth. Indeed, he continued to work on the\\nassembly line for about a decade without incident. But in 2015, the work restrictions became\\nrelevant again. Booth requested a transfer to a different position in the factory, which Nissan\\ndenied because that position’s duties conflicted with Booth’s work restrictions. Booth contends\\nthat Nissan’s denial was disability discrimination that violated the Americans with Disabilities\\nAct (“ADA”), 42 U.S.C. §§ 12101 et seq.\\n\\n Soon after Booth requested the transfer, Nissan announced plans to restructure the\\nassembly line. While Booth and his co-workers on the line had performed two discrete jobs,\\nNissan wanted to modify the line so that workers would perform four jobs. Booth alleges that\\nthe two additional jobs Nissan assigned to him would have violated his work restrictions—and\\nthat when he informed Nissan about this conflict, Nissan told him to see a physician to assess\\nwhether he still needed the restrictions. Booth followed that request, and his physician modified\\nthe restrictions, clearing him to work all four jobs. Although Booth remains a Nissan employee,\\nhe claims that Nissan failed to accommodate him—a separate violation of the ADA—by\\npressuring him to remove his work restrictions.\\n\\n Of course, to sue under the ADA, the plaintiff must be disabled. And just because a\\nplaintiff has work restrictions does not mean that he is disabled. Because Booth has not\\nadvanced evidence that he is disabled under the ADA (among other reasons), his claims fail. We\\nAFFIRM the district court’s decision granting summary judgment to Nissan.\\n\\n I.\\n\\n After Booth had begun working at Nissan, he injured his neck in October 2004. Booth\\nvisited his physician, who issued a report recommending several permanent work restrictions,\\nincluding that (1) Booth work overhead or above his shoulders no more than 33% of the time;\\nand (2) Booth flex or extend his neck no more than 66% of the time. Those restrictions did not\\naffect Booth’s day-to-day job duties: Booth explained that “[f]rom 2004 through 2015, [he]\\nworked within his original 2005 restrictions.” (R. 32, Pl.’s Resp. to Statement of Material Facts\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 3\\n\\n\\nat ¶ 9.) In April 2014, Nissan transferred Booth to a different part of the assembly line, the “door\\nline,” but Booth’s work restrictions did not interfere with his work there, either.\\n\\n This appeal concerns two events that occurred about a decade after Booth’s physician\\nrecommended the work restrictions: (1) Booth’s requested transfer to a material handling\\nposition; and (2) Booth’s transition on the door line from a two-job position to a four-job\\nposition. We consider each event below.\\n\\n Material Handling Transfer. Sometime in September or October 2015, Booth requested\\na transfer to a material handling position. If Nissan had granted the transfer, Booth would not\\nhave seen any changes to his pay or benefits. But Booth alleges that the material handling\\nposition was less stressful and thus more desirable than his position on the line. Nissan refers\\ninternally to the material handling role as a “preferred” position that it awards to applicants based\\non seniority and their ability to perform the position’s essential functions.\\n\\n Nissan denied Booth’s transfer request. In November 2015, Nissan human resources\\nrepresentative Darron Keith informed Booth that although he had enough seniority to apply for\\nthe material handling position, his work restrictions conflicted with the position’s requirements.\\nBooth, however, insisted that he could perform the role without violating his restrictions, and\\nasked to speak about Nissan’s decision with other supervisors. The next month, Booth met with\\nDebbie Nelson, a manager in Nissan’s medical department, to discuss why Nissan had denied his\\ntransfer request. Once again, Booth heard that his work restrictions conflicted with the duties of\\nthe material handling role. Not satisfied with that explanation, Booth continued to pursue the\\nmatter with his supervisors; in October 2016, Booth met with Randy Knight, a Nissan senior\\nmanager, to discuss why Nissan denied his transfer application. Knight promised to get back to\\nBooth, but in the interim, Booth remained in his position on the line.\\n\\n Door Line Transition. When Booth arrived at the door line in 2014, workers there had to\\nperform two discrete jobs. For Booth, that meant installing the right-side water shield and the\\nleft-side regulator. But around the time Booth requested the transfer, Nissan announced plans to\\noverhaul its assembly lines, including the door line. Rather than perform two discrete\\ninstallation jobs, door line workers would have to install four components of a car. In Booth’s\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 4\\n\\n\\ncase, Nissan wanted him to start installing the left-side door glass and left-side door panel along\\nwith the two jobs he was already performing. When Booth met with Darron Keith in November\\n2015 to discuss the material handling position, he told Keith that the two new installation jobs\\nNissan wanted him to perform would violate his work restrictions and again requested to transfer\\nto the material handling position, which Booth described as “an easier and simpler job.” (R. 25–\\n2, Booth Dep. at 36:7–13.)\\n\\n In September 2016, Nissan started implementing the announced changes to its assembly\\nlines. So once more, Booth warned Nissan management—including his direct supervisor Randy\\nWiseman—that his work restrictions might prevent him from performing all four jobs on the\\ndoor line. In response, Nissan inquired with its insurer whether Booth could perform any of the\\njobs on the door line. Nissan soon learned that no such jobs existed, so Nissan kept Booth in his\\ntwo-job position for the time being.\\n\\n Later that fall, Nissan supervisors began to express concern that Booth’s restrictions\\nwould interfere with his ability to remain on the door line—even in his two-job position.\\nAccording to Booth, Randy Knight suggested that the two jobs Booth was already performing—\\ninstalling the right-side rear water shield and the left-side regulator—conflicted with his work\\nrestrictions. Later, Knight warned Booth that Nissan was “not going to have a job for [him]”\\nunless he changed the work restrictions. (R. 31–6, Booth Dep. at 98:20–25.) To prevent that\\nfrom happening, several Nissan employees—including Knight and Wiseman—encouraged\\nBooth to see a physician to determine whether his restrictions were still medically necessary.\\nEmail correspondence between Nissan supervisors reflects the same concern. In November\\n2016, Nissan senior manager Mark LaCroix emailed a colleague to explain that Booth’s\\nrestrictions do not “clea[r] him to run any jobs in the plant” and that Nissan advised Booth “of\\nthe steps he would need to take in order to possibly improve his current standings in regards to\\nhis restrictions.” (R. 31–5, Email.) LaCroix followed up on his email in January 2017, noting\\nthat Nissan “continued to let [Booth] work in his current pod, but we can’t continue to do that if\\nhe doesn’t get his Perm Restrictions modified to clear him for duty.” (Id.) And Nissan human\\nresources manager Bill Slagle responded that while Booth had scheduled several medical\\nappointments to reevaluate his restrictions, he “needs to be refreshed on the urgency and need for\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 5\\n\\n\\nthe medical clinic to assess the findings of the doctor and make a determination regarding his\\ncurrent restrictions.” (Id.)\\n\\n Booth ultimately met with a physician, who performed a functional capacity test and\\nissued a report modifying Booth’s work restrictions. Under Booth’s 2005 work restrictions, he\\ncould not flex his neck more than 66% of the time, but the physician removed that restriction\\nentirely. The physician maintained the restrictions that limited Booth’s overhead activity and\\nreaching to no more than 33% of the time. But while Booth’s 2005 restrictions applied to both\\nhis right and left side, the physician limited the restrictions only to activity on Booth’s left side.\\nBooth testified that he has no disagreement with his physician’s revisions to his work\\nrestrictions.\\n\\n After Booth informed his supervisors about the revised work restrictions, Nissan\\ndetermined that he could work the full, four-job position without violating his work restrictions.\\nIn February 2017, Nissan cleared Booth to work on the assembly line, and Booth’s counsel\\nstated at oral argument that Booth continues to work there.\\n\\n This litigation dates to November 2016, when Booth filed an intake questionnaire with\\nthe Equal Employment Opportunity Commission in which he alleged disability discrimination.\\nBooth then filed a formal charge with the Tennessee Human Rights Commission in December\\n2016, alleging disability discrimination and retaliation. The EEOC dismissed Booth’s charge\\nafter concluding that Booth had not supplied sufficient information to establish an ADA\\nviolation. So Booth filed this lawsuit in the Middle District of Tennessee, alleging failure-to-\\naccommodate and disability discrimination, both in violation of the ADA, and a state law\\nworkers’ compensation retaliation claim. Nissan moved for summary judgment, which the\\ndistrict court granted. Booth appeals the district court’s dismissal of his ADA claims.1\\n\\n II.\\n\\n We review a district court’s summary judgment decision de novo. Auburn Sales, Inc. v.\\nCypros Trading & Shipping, Inc., 898 F.3d 710, 715 (6th Cir. 2018). In doing so, we must view\\n\\n 1Booth did not appeal the district court’s dismissal of his workers’ compensation retaliation claim so we do\\nnot address that issue.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 6\\n\\n\\nthe evidence and draw all inferences in the light most favorable to Booth, the nonmoving party,\\nto determine whether there is a genuine issue of material fact. Henschel v. Clare Cty. Rd.\\nComm’n, 737 F.3d 1017, 1022 (6th Cir. 2013). If there is, summary judgment is improper. Id.\\n\\n A.\\n\\n Booth’s first claim is that Nissan engaged in disability discrimination when it denied his\\nrequested transfer to the material handling role. But before we can consider the merits of that\\nclaim, we first address Nissan’s argument that the claim is untimely. Booth’s claim arises under\\nthe ADA, which imposes several procedural requirements before plaintiffs may turn to federal\\ncourt for relief. Bullington v. Bedford Cty., 905 F.3d 467, 469 (6th Cir. 2018). One such\\nrequirement relates to timeliness: the plaintiff must first file a charge describing the alleged\\ndiscrimination, either with the EEOC or with an equivalent state agency, before he can litigate\\nthe claim in court. Cox v. City of Memphis, 230 F.3d 199, 202 n.2 (6th Cir. 2000). If the\\nplaintiff files his charge directly with the EEOC, he must do so within 180 days of the alleged\\ndiscrimination; if he chooses instead to file the charge with an equivalent state agency, he has\\n300 days from the alleged discrimination. See 42 U.S.C. § 12117; 42 U.S.C. § 2000e-5; Block v.\\nMeharry Med. Coll., 723 F. App’x 273, 277 (6th Cir. 2018).\\n\\n Booth filed his charge with the Tennessee Human Rights Commission on December 9,\\n2016, so for his claim to be timely, the alleged discrimination must have occurred sometime\\nwithin 300 days of December 9, 2016. Thus, our task is to determine when the alleged\\ndiscrimination occurred. According to Nissan, the 300-day deadline for Booth to file his charge\\nbegan sometime in November 2015, when Nissan supervisor Darron Keith informed Booth that\\nNissan had rejected his transfer request. If Nissan is correct, then Booth’s claim is untimely:\\neven if Keith told Booth about the decision on November 30, 2015, Booth still waited more than\\n300 days before filing his charge. Booth, however, argues that Nissan did not make a final\\ndecision about his transfer request until sometime in October or November 2016—and that his\\ncharge is therefore timely.\\n\\n We find Nissan’s argument persuasive. Booth has advanced no evidence to suggest that\\nNissan’s denial of his transfer request in November 2015 was anything but a final decision.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 7\\n\\n\\nTrue, Booth requested to speak with other supervisors after learning that Nissan had denied his\\ntransfer, and Nissan granted that request. But Nissan’s decision was no less final, simply\\nbecause Nissan supervisors explained the company’s decision to Booth several times in 2015 and\\n2016. Those discussions did not reset the 300-day deadline to file the charge.\\n\\n We considered a similar issue in Hall v. The Scotts Co., in which the plaintiff sued his\\nemployer under the ADA after his employer refused to purchase special respirator equipment\\nthat would have allowed him to operate a forklift. 211 F. App’x 361 (6th Cir. 2006). The\\nemployer announced its decision to not purchase the equipment in August 2003, citing safety\\nconcerns. Id. at 362. In November, the plaintiff offered to purchase the equipment himself if it\\nmeant that he could operate the forklift, but the employer declined that offer in December. Id.\\nThe plaintiff then filed a charge in October 2004 and later filed a complaint in federal court. We\\nheld that the claim was untimely because the allegedly discriminatory act occurred in August\\n2003, when the employer first denied the plaintiff’s requested accommodation, and we described\\nthe plaintiff’s later request as “simply an impotent attempt to renew his earlier request” rather\\nthan the “culmination of an interactive process to accommodate his disability.” Id. at 363\\n(internal quotation marks omitted). Our reasoning in Hall applies with equal force here. Booth\\nhad 300 days to file a charge from November 2015, when Keith informed him that Nissan denied\\nhis transfer request. Even if we assume that Keith notified Booth on the last day of November,\\nBooth’s charge would still be late. Thus, Booth cannot pursue his disability discrimination claim\\nin federal court.\\n\\n If Booth had satisfied the ADA’s procedural requirements, his disability discrimination\\nclaim would still fail because Booth has not supplied evidence to suggest that he is disabled.\\nThe ADA forbids employers from discriminating “against a qualified individual on the basis of\\ndisability in regard to job application procedures, the hiring, advancement, or discharge of\\nemployees, employee compensation, job training, and other terms, conditions, and privileges of\\nemployment.” 42 U.S.C. § 12112(a). So to establish a prima facie claim for disability\\ndiscrimination, the plaintiff must show that:\\n\\n 1) he or she is disabled; 2) otherwise qualified for the position, with or without\\n reasonable accommodation; 3) suffered an adverse employment decision; 4) the\\n employer knew or had reason to know of the plaintiff’s disability, and 5) the\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 8\\n\\n\\n position remained open while the employer sought other applicants or the\\n disabled individual was replaced.\\n\\nWhitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011) (internal quotation marks and citations\\nomitted; emphasis added). And to prove that he is disabled, Booth must show that he has (1) “a\\nphysical or mental impairment that substantially limits one or more major life activities,” (2) “a\\nrecord of such an impairment,” or (3) “[is] regarded as having such an impairment[.]” 42 U.S.C.\\n§ 12102(1); see also Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir.\\n2008). Finally, “working” is an example of a major life activity. 42 U.S.C. § 12102(2)(A).\\n\\n Booth seems to assume that because he has work restrictions and because Nissan denied\\nhis transfer request because of those restrictions, he is disabled under the ADA. And he states\\nthat Nissan “do[es] not dispute [his] disability or need for accommodation.” (Appellant Br. 13.)\\nIn fact, the record suggests that Nissan has vigorously disputed the issue: Nissan argued in its\\nsummary judgment motion before the district court that Booth is not disabled under the ADA,\\nand Nissan raised that argument again in its brief to this court.2 Indeed, Nissan argues that\\nBooth is not disabled under the ADA and that his disability discrimination claim therefore fails.\\n\\n Several of our published decisions support Nissan’s position. We have held that simply\\nhaving a work restriction does not automatically render one disabled, McKay v. Toyota Motor\\nMfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997), nor does being unable to perform a discrete\\ntask or a specific job. Id.; see also Mahon v. Crowell, 295 F.3d 585, 591 (6th Cir. 2002). But as\\nBooth’s counsel noted at oral argument, those cases predate Congress’s 2008 amendments to the\\nADA, which reflected a direct response to the Supreme Court’s “narrow interpretation of what\\nconstitutes a disability.” Robbins v. Saturn Corp., 532 F. App’x 623, 628 (6th Cir. 2013). In\\namending the statute, Congress instructed courts that the “definition of disability . . . shall be\\nconstrued in favor of broad coverage of individuals,” 42 U.S.C. § 12102(4)(A), and the statute\\nnow underscores that an impairment that “substantially limits one major life activity need not\\nlimit other major life activities in order to be considered a disability.” Id. § 12102(4)(C).\\n\\n\\n\\n2 The district court did not address Nissan’s argument that Booth is not disabled and instead dismissed Booth’s\\nclaims on other grounds.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 9\\n\\n\\n Even so, Congress did not modify the definition of the major life activity of working, and\\na plaintiff who alleges a work-related disability “is still required to show that her impairment\\nlimits her ability to ‘perform a class of jobs or broad range of jobs.’” Tinsley v. Caterpillar Fin.\\nServs., Corp., No. 18-5303, 2019 WL 1302189, at *5 (6th Cir. Mar. 20, 2019) (quoting 29\\nC.F.R. § 1630, App. (2016)); accord Mancini v. City of Providence, 909 F.3d 32, 42 n.6 (1st Cir.\\n2018); Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015); Allen v. SouthCrest\\nHosp., 455 F. App’x 827, 835 (10th Cir. 2011). EEOC regulations explain that a plaintiff cannot\\nclaim a disability by simply “[d]emonstrating a substantial limitation in performing the unique\\naspects of a single specific job.” 29 C.F.R. § 1630, App. (2016). That Booth’s neck injury and\\nrelated work restrictions kept him from working in the material handling role does not resolve\\nwhether Booth is disabled under the ADA. Rather than point to one job that he cannot perform,\\na plaintiff alleging a work-related disability must show that his condition precludes him from\\nworking in a class or broad range of jobs, “such as . . . assembly line jobs.” Id. Booth has not\\nmade that showing. To the contrary, Booth concedes that he has worked without interruption on\\nthe assembly line since injuring his neck in 2004—and has continued to work there since this\\nlitigation began.\\n\\n Moreover, Booth does not argue that Nissan denied his transfer request because it\\nregarded him as disabled. Nor could he. Under the ADA, an employee:\\n\\n meets the requirement of “being regarded as having such an impairment” if the\\n individual establishes that he or she has been subjected to an action prohibited\\n under this chapter because of an actual or perceived physical or mental\\n impairment whether or not the impairment limits or is perceived to limit a major\\n life activity.\\n\\n42 U.S.C. § 12102(3)(A). In other words, a plaintiff may seek relief under the ADA if his\\nemployer mistakenly believes that he is substantially limited from performing a major life\\nactivity, such as work. Ferrari v. Ford Motor Co., 826 F.3d 885, 893 (6th Cir. 2016). In\\nFerrari, a decision following Congress’s 2008 amendments to the ADA, we considered whether\\nthe plaintiff’s employer regarded him as disabled. Id. at 892–93. The plaintiff in that case\\nworked on a Ford assembly line and became eligible for a transfer to a skilled trade\\napprenticeship, provided he passed a medical examination to ensure that he could perform the\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 10\\n\\n\\nrole. Id. at 889. That proved to be a problem: the plaintiff had injured his neck and treated the\\ninjury with prescription opioids, yet the apprenticeship would have required him to work\\nregularly overhead and climb 50-foot ladders. Id. Ford concluded that the plaintiff’s opioid use\\nprecluded him from holding the apprenticeship position and placed him instead in a machining\\nposition that met his restrictions. Id. at 890–91. We rejected the plaintiff’s argument that Ford\\nregarded him as disabled, noting that Ford had placed the plaintiff in “both clerical and assembly\\npositions” and that Ford had “only barred [the plaintiff] from a single, particular job—the [ ]\\napprenticeship.” Id. at 893. Thus, we concluded that the evidence did not show that Ford\\nregarded the plaintiff’s restrictions “as a substantial impairment on the major life activity of\\nworking.” Id. at 894. For these same reasons, Booth has not shown that Nissan regarded him as\\ndisabled when it denied his transfer request (while employing him on the assembly line all\\nalong).\\n\\n At summary judgment, we must draw all inferences and view all evidence in the light\\nmost favorable to Booth, the nonmoving party. Henschel, 737 F.3d at 1022. But if the moving\\nparty shows the lack of a genuine issue of material fact on an element of the nonmoving party’s\\ncase, the nonmoving party must set forth specific facts showing a triable issue. Hedrick v.\\nWestern Reserve Care Sys., 355 F.3d 444, 451–52 (6th Cir. 2004). Because Booth has advanced\\nno evidence of his disability beyond his work restrictions, he cannot show that he is disabled and\\nhas therefore failed to carry his burden at summary judgment. We affirm the district court’s\\ngrant of summary judgment on that claim.\\n\\n B.\\n\\n Booth brings a separate claim under the ADA, alleging that Nissan failed to\\naccommodate his disability after it modified its assembly lines. The thrust of Booth’s argument\\nis that Nissan pressured him to remove his work restrictions—and, indeed, warned that there\\nwould be no jobs for him at the factory—rather than accommodate his limitations.\\n\\n Unlike his disability discrimination claim, Booth’s failure-to-accommodate claim is\\ntimely because the alleged conduct underlying this claim continued even after Booth filed his\\ncharge with the Tennessee Human Rights Commission. Thus, we consider the merits of Booth’s\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 11\\n\\n\\nclaim. Generally, there are two ways to prove disability discrimination—either directly or\\nindirectly. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018) (citing Ferrari,\\n826 F.3d at 891). The type of evidence (direct or indirect) that the plaintiff must provide—and\\nthe test that governs the plaintiff’s claim—depends on the nature of the claim. Here, failure-to-\\naccommodate claims “necessarily involve direct evidence (the failure to accommodate) of\\ndiscrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (citing\\nBultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996)); see also E.E.O.C. v.\\nDolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018) (“And failing to provide a protected\\nemployee a reasonable accommodation constitutes direct evidence of discrimination.”) So to\\nbring a claim for failure-to-accommodate, the plaintiff must provide direct evidence that he\\nsuffered an adverse employment action because of his disability. Ferrari, 826 F.3d at 891.\\n\\n Under the direct method of proof, the plaintiff must prove that (1) he is disabled under\\nthe ADA; and (2) he is otherwise qualified for the position, despite his disability, “(a) without\\naccommodation from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or\\n(c) with a proposed reasonable accommodation.” Ferrari, 826 F.3d at 891 (citation omitted).\\nIf the plaintiff proves those elements, his employer must then show that “a challenged job\\ncriterion is essential . . . or that a proposed accommodation will impose an undue hardship.” Id.\\n(citation omitted).\\n\\n Like his disability discrimination claim, Booth’s failure-to-accommodate claim fails out\\nof the gate because he has not advanced an argument, supported by evidence, that he is disabled\\nunder the ADA.3 But even setting the disability element aside, Booth’s failure-to-accommodate\\nclaim fails for a separate reason: Nissan never failed to accommodate Booth. Nissan allowed\\nBooth to remain in the two-job position after he alerted his supervisors that the two new tasks\\nNissan wanted him to perform conflicted with his work restrictions. And Booth remained in that\\nrole while he sought medical advice about his work restrictions. Nissan did not move Booth\\nfrom the two-job position until it reviewed his doctor’s report and determined that his work\\n\\n\\n 3We note that this issue would have been closer, had Booth argued that Nissan regarded him as disabled\\nwhen it warned Booth that he would be jobless unless he changed his work restrictions. But Booth does not make\\nthis argument in his brief, and in any event, his failure-to-accommodate claim fails for separate reasons.\\n\\f No. 18-5985 Booth v. Nissan N. Am., Inc. Page 12\\n\\n\\nrestrictions did not conflict with the modified positions on the assembly line. Nor does Booth\\nsuggest that he misreported his symptoms or otherwise encouraged his doctor to modify the\\nrestrictions in order to preserve his job. To the contrary, Booth testified that he does not disagree\\nwith his doctor’s revisions to his work restrictions. So Booth’s claim also fails because he has\\noffered no evidence that Nissan failed to accommodate him.\\n\\n III.\\n\\n For these reasons, we AFFIRM the district court’s summary judgment decision.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2491,"cells":{"id":{"kind":"number","value":4627971,"string":"4,627,971"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Eric Scott RUSKA, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Eric Ruska"},"decision_date":{"kind":"string","value":"2019-06-10"},"docket_number":{"kind":"string","value":"18-1194"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Batchelder, McKEAGUE, Nalbandian\", \"parties\": \"\", \"opinions\": [{\"author\": \"NALBANDIAN, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0124p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-1194\\n v. │\\n │\\n │\\n ERIC SCOTT RUSKA, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Western District of Michigan at Marquette.\\n No. 2:17-cr-00025-1—Robert J. Jonker, Chief District Judge.\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Elizabeth A. LaCosse, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nMarquette, Michigan, for Appellant. Maarten Vermaat, UNITED STATES ATTORNEY’S\\nOFFICE, Marquette, Michigan, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n NALBANDIAN, Circuit Judge. Eric Scott Ruska appeals his sentence of life\\nimprisonment to the extent that the district court imposed it under the federal three strikes statute,\\n18 U.S.C. § 3559(c). For the following reasons, we affirm.\\n\\f No. 18-1194 United States v. Ruska Page 2\\n\\n\\n I.\\n\\n In 2002, Ruska drove a nineteen-year-old woman down a two-track road in rural\\nMichigan. He then stopped the car and revealed he had a handgun. The woman asked him\\nseveral times to take her home, but Ruska refused. Instead, he raped her three times. Although\\nRuska was first charged with three counts of first-degree criminal sexual conduct, he pleaded\\nguilty to a reduced charge—assault with intent to do great bodily harm less than murder. As a\\nresult, the court sentenced him to one year in jail and two years of probation.\\n\\n After his release from jail the following year, Ruska raped another woman. He also\\nforced this woman to sit partially naked on a sofa for about three hours while he threatened to\\nbeat her. He then drove her around for several hours and suggested he would kill her before he\\neventually took her back to her home. For this crime, Ruska pleaded guilty to one count of third-\\ndegree criminal sexual conduct and kidnapping. And he was sentenced to between ten and\\nfifteen years in prison.\\n\\n Within two years after he was discharged on parole, Ruska attacked another woman.\\nThis woman had the misfortune of accepting his invitation to join him on a fishing trip. The two\\nhad been fishing on Ruska’s boat for a few hours before Ruska “snapped” and said to her: “I’m\\nnot out here for the enjoyment of fishing, but this is what I’m about to do and you either go along\\nwith it or I have a gun and I’ll shoot you with it.” [R. 57, Presentence Report at PageID #322 ¶\\n30.] He then raped her repeatedly over several days until the police found them both and\\narrested Ruska.\\n\\n For these offenses—committed in the Hiawatha National Forest, which is under federal\\nterritorial jurisdiction—the government charged Ruska with one count of kidnapping and three\\ncounts of sexual abuse. Ruska pleaded guilty to all the charges and the district court sentenced\\nhim to life in prison for each count. The court arrived at that sentence based on three alternative\\ngrounds: First, the court ruled that the federal “three strikes” statute, 18 U.S.C. § 3559(c),\\nmandated a life sentence. Second, the court ruled that an upward departure to life from Ruska’s\\nGuidelines range was justified based on U.S.S.G. §§ 4A1.3, 5K2.21, and 5K2.8. And third, the\\n\\f No. 18-1194 United States v. Ruska Page 3\\n\\n\\ncourt ruled that an upward variance to life was warranted based on the 18 U.S.C. § 3553(a)\\nfactors. Ruska now appeals this sentence.\\n\\n II.\\n\\n Ruska only challenges the first of these rulings: that he qualified for a life sentence under\\nthe federal three strikes statute. Because that ruling is a legal conclusion, we review it de novo.\\nSee United States v. Prater, 766 F.3d 501, 507 (6th Cir. 2014).\\n\\n III.\\n\\n The three strikes statute mandates a life sentence for defendants who are convicted of a\\n“serious violent felony” and have already been convicted of at least two other serious violent\\nfelonies. 18 U.S.C. § 3559(c). The statute defines what counts as a serious violent felony, or\\n“strike,” using a “familiar three-part structure, with an enumerated clause, [an elements] clause,\\nand a residual clause.” United States v. Johnson, 915 F.3d 223, 228 (4th Cir. 2019). A prior\\nconviction may qualify as a serious violent felony under any of those clauses. See\\n§ 3559(c)(2)(F)(i)–(ii).\\n\\n The district court determined that Ruska had three strikes based on his convictions for the\\ncrimes involving the three women he attacked. As relevant here, the district court ruled that his\\n2002 conviction for assault with intent to do great bodily harm less than murder, Mich. Comp.\\nLaws § 750.84,1 qualified as a serious violent felony under both the elements and residual\\nclauses of the three strikes statute. Ruska argues that this was error.\\n\\n More precisely, Ruska argues that Michigan Compiled Laws § 750.84 does not have “as\\nan element, the use, attempted use, or threatened use of physical force,” as it must to qualify\\nunder the elements clause. See 18 U.S.C. § 3559(c)(2)(F)(ii). And he argues that the residual\\nclause is unconstitutionally vague because of the Supreme Court’s decision in Sessions v.\\nDimaya, 138 S. Ct. 1204 (2018). We consider whether Michigan Compiled Laws § 750.84\\n\\n 1At the time of Ruska’s conviction, section 750.84 provided: “Any person who shall assault another with\\nintent to do great bodily harm, less than the crime of murder, shall be guilty of a felony punishable by imprisonment\\nin the state prison not more than 10 years, or by fine of not more than 5,000 dollars.” Mich. Comp. Laws § 750.84\\n(amended 2013). The current version of the statute “is not materially different.” Raybon v. United States, 867 F.3d\\n625, 632 (6th Cir. 2017).\\n\\f No. 18-1194 United States v. Ruska Page 4\\n\\n\\nqualifies under the elements clause first to “avoid [any] unnecessary adjudication of\\nconstitutional issues.” Brown v. United States, 20 F. App’x 373, 374 (6th Cir. 2001).\\n\\n To determine whether a prior conviction qualifies under the elements clause, we employ\\nthe categorical approach. See United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019)\\n(en banc) (noting that the Supreme Court has historically “instructed federal sentencing courts to\\nuse the ‘categorical approach’” in similar contexts). That means we ask whether the\\nconviction—disregarding its underlying facts—necessarily has “the use, attempted use, or\\nthreatened use of physical force” as an element of the offense. See id.\\n\\n How much physical force? Both parties implicitly assume that the answer here is the\\nsame as it is under the identically worded elements clause of the Armed Career Criminal Act\\n(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” under 18 U.S.C. § 924(e)(1)).\\nAnd under the ACCA’s elements clause, “‘physical force’ means violent force—i.e., force\\ncapable of causing physical pain or injury to another person.” Johnson v. United States,\\n559 U.S. 133, 140 (2010) (“Johnson I”).2\\n\\n Although we have never said as much before, we agree with the parties. “[B]ecause both\\nlaws share essentially the same definition (if not the same titles),” we can define a “serious\\nviolent felony” under § 3559(c) the same way we define a “violent felony” under the ACCA,\\n§ 924(e)(1). See United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009) (treating a “crime of\\nviolence” under U.S.S.G. § 4B1.1(a) the same as a “violent felony” under § 924(e)(1)); United\\nStates v. Harris, 853 F.3d 318, 320 (6th Cir. 2017).3 Thus, we now hold that the elements clause\\n\\n\\n\\n\\n 2We refer to Johnson v. United States, 559 U.S. 133 (2010) as “Johnson I” to distinguish it from Johnson v.\\nUnited States, 135 S. Ct. 2551 (2015) (“Johnson II”), in which the Court held the ACCA’s residual clause to be\\nunconstitutionally vague.\\n 3This follows from the “premise that when Congress uses the same language in two statutes having similar\\npurposes . . . it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”\\nSmith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality opinion) (citing Northcross v. Board of Ed. of Memphis\\nCity Sch., 412 U.S. 427, 428 (1973) (per curiam)).\\n\\f No. 18-1194 United States v. Ruska Page 5\\n\\n\\nof 18 U.S.C. § 3559(c)(2)(F)(ii) requires the same showing of Johnson I “violent force” that\\nmust be shown under the elements clause of the ACCA.4\\n\\n The question then is whether Michigan Compiled Laws § 750.84 has as an element, the\\nuse, attempted use, or threatened use of Johnson I “violent force.” Ruska contends that § 750.84\\nrequires only the type of force necessary to commit a simple assault, which can extend to the\\n“slightest unwanted physical touch.” See Johnson I, 559 U.S. at 137. But he acknowledges that\\nwe already addressed this issue in Raybon v. United States, 867 F.3d 625, 632 (6th Cir. 2017)\\n(holding that § 750.84 qualifies as a “crime of violence” under the elements clause of U.S.S.G.\\n§ 4B1.2(a)(1)). There, we concluded that § 750.84 has as “an element . . . the use or threat of the\\ntype of force required by Johnson [I].” Id. Although Raybon interpreted a different elements\\nclause, we see no reason to depart from its sound analysis here. We hold, therefore, that\\nMichigan Compiled Laws § 750.84 qualifies as a serious violent felony under the three strikes\\nstatute.5\\n\\n IV.\\n\\n For these reasons, we affirm.\\n\\n\\n\\n\\n 4The Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014), is not to the contrary.\\nIn Castleman, the Court held that the requirement of “physical force” in the nearly identical elements clause of\\n18 U.S.C. § 921(a)(33)(A)(ii) “is satisfied . . . by the degree of force that supports a common-law battery\\nconviction.” Castleman, 572 U.S. at 168. But it was important that the Court was interpreting “physical force”\\nwhere it was used to define “a misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9) (emphasis\\nadded). Since all battery was a misdemeanor at common law, see Johnson I, 559 U.S. at 141, it was “likely that\\nCongress meant to incorporate [a] misdemeanor-specific meaning of ‘force’” there. See Castleman, 572 U.S. at 164.\\nIn contrast, it would make little sense for Congress to give “physical force” its common-law misdemeanor meaning\\nwhen defining the term “serious violent felony.” See Johnson I, 559 U.S. at 141. In any event, were Castleman to\\napply, it would compel an affirmance in this case since Ruska submits that Michigan Compiled Laws § 750.84\\nrequires the type of force necessary to commit a common law assault or battery.\\n 5Accordingly, we do not address the constitutionality of the residual clause in 18 U.S.C.\\n§ 3559(c)(2)(F)(ii). We further note that even if the district court had erred in sentencing Ruska to life in prison\\npursuant to the three strikes statute, that error would have been harmless since we can be certain that it would not\\nhave affected his sentence. See United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005). The district court\\nexplained that even if the three strikes statute did not apply, it would have still sentenced Ruska to life in prison by\\neither departing upwards under the Guidelines or by varying upwards under the 18 U.S.C. § 3553(a) factors. And\\nRuska does not challenge his sentence under either of those alternative grounds.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405224/\", \"author_raw\": \"NALBANDIAN, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"BATCHELDER"},"judge2":{"kind":"string","value":"MCKEAGUE"},"judge3":{"kind":"string","value":"NALBANDIAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"McKEAGUE\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627971/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Eric Scott RUSKA, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0124p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-1194\n v. │\n │\n │\n ERIC SCOTT RUSKA, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Western District of Michigan at Marquette.\n No. 2:17-cr-00025-1—Robert J. Jonker, Chief District Judge.\n\n Decided and Filed: June 10, 2019\n\n Before: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nON BRIEF: Elizabeth A. LaCosse, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nMarquette, Michigan, for Appellant. Maarten Vermaat, UNITED STATES ATTORNEY’S\nOFFICE, Marquette, Michigan, for Appellee.\n _________________\n\n OPINION\n _________________\n\n NALBANDIAN, Circuit Judge. Eric Scott Ruska appeals his sentence of life\nimprisonment to the extent that the district court imposed it under the federal three strikes statute,\n18 U.S.C. § 3559(c). For the following reasons, we affirm.\n\f No. 18-1194 United States v. Ruska Page 2\n\n\n I.\n\n In 2002, Ruska drove a nineteen-year-old woman down a two-track road in rural\nMichigan. He then stopped the car and revealed he had a handgun. The woman asked him\nseveral times to take her home, but Ruska refused. Instead, he raped her three times. Although\nRuska was first charged with three counts of first-degree criminal sexual conduct, he pleaded\nguilty to a reduced charge—assault with intent to do great bodily harm less than murder. As a\nresult, the court sentenced him to one year in jail and two years of probation.\n\n After his release from jail the following year, Ruska raped another woman. He also\nforced this woman to sit partially naked on a sofa for about three hours while he threatened to\nbeat her. He then drove her around for several hours and suggested he would kill her before he\neventually took her back to her home. For this crime, Ruska pleaded guilty to one count of third-\ndegree criminal sexual conduct and kidnapping. And he was sentenced to between ten and\nfifteen years in prison.\n\n Within two years after he was discharged on parole, Ruska attacked another woman.\nThis woman had the misfortune of accepting his invitation to join him on a fishing trip. The two\nhad been fishing on Ruska’s boat for a few hours before Ruska “snapped” and said to her: “I’m\nnot out here for the enjoyment of fishing, but this is what I’m about to do and you either go along\nwith it or I have a gun and I’ll shoot you with it.” [R. 57, Presentence Report at PageID #322 ¶\n30.] He then raped her repeatedly over several days until the police found them both and\narrested Ruska.\n\n For these offenses—committed in the Hiawatha National Forest, which is under federal\nterritorial jurisdiction—the government charged Ruska with one count of kidnapping and three\ncounts of sexual abuse. Ruska pleaded guilty to all the charges and the district court sentenced\nhim to life in prison for each count. The court arrived at that sentence based on three alternative\ngrounds: First, the court ruled that the federal “three strikes” statute, 18 U.S.C. § 3559(c),\nmandated a life sentence. Second, the court ruled that an upward departure to life from Ruska’s\nGuidelines range was justified based on U.S.S.G. §§ 4A1.3, 5K2.21, and 5K2.8. And third, the\n\f No. 18-1194 United States v. Ruska Page 3\n\n\ncourt ruled that an upward variance to life was warranted based on the 18 U.S.C. § 3553(a)\nfactors. Ruska now appeals this sentence.\n\n II.\n\n Ruska only challenges the first of these rulings: that he qualified for a life sentence under\nthe federal three strikes statute. Because that ruling is a legal conclusion, we review it de novo.\nSee United States v. Prater, 766 F.3d 501, 507 (6th Cir. 2014).\n\n III.\n\n The three strikes statute mandates a life sentence for defendants who are convicted of a\n“serious violent felony” and have already been convicted of at least two other serious violent\nfelonies. 18 U.S.C. § 3559(c). The statute defines what counts as a serious violent felony, or\n“strike,” using a “familiar three-part structure, with an enumerated clause, [an elements] clause,\nand a residual clause.” United States v. Johnson, 915 F.3d 223, 228 (4th Cir. 2019). A prior\nconviction may qualify as a serious violent felony under any of those clauses. See\n§ 3559(c)(2)(F)(i)–(ii).\n\n The district court determined that Ruska had three strikes based on his convictions for the\ncrimes involving the three women he attacked. As relevant here, the district court ruled that his\n2002 conviction for assault with intent to do great bodily harm less than murder, Mich. Comp.\nLaws § 750.84,1 qualified as a serious violent felony under both the elements and residual\nclauses of the three strikes statute. Ruska argues that this was error.\n\n More precisely, Ruska argues that Michigan Compiled Laws § 750.84 does not have “as\nan element, the use, attempted use, or threatened use of physical force,” as it must to qualify\nunder the elements clause. See 18 U.S.C. § 3559(c)(2)(F)(ii). And he argues that the residual\nclause is unconstitutionally vague because of the Supreme Court’s decision in Sessions v.\nDimaya, 138 S. Ct. 1204 (2018). We consider whether Michigan Compiled Laws § 750.84\n\n 1At the time of Ruska’s conviction, section 750.84 provided: “Any person who shall assault another with\nintent to do great bodily harm, less than the crime of murder, shall be guilty of a felony punishable by imprisonment\nin the state prison not more than 10 years, or by fine of not more than 5,000 dollars.” Mich. Comp. Laws § 750.84\n(amended 2013). The current version of the statute “is not materially different.” Raybon v. United States, 867 F.3d\n625, 632 (6th Cir. 2017).\n\f No. 18-1194 United States v. Ruska Page 4\n\n\nqualifies under the elements clause first to “avoid [any] unnecessary adjudication of\nconstitutional issues.” Brown v. United States, 20 F. App’x 373, 374 (6th Cir. 2001).\n\n To determine whether a prior conviction qualifies under the elements clause, we employ\nthe categorical approach. See United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019)\n(en banc) (noting that the Supreme Court has historically “instructed federal sentencing courts to\nuse the ‘categorical approach’” in similar contexts). That means we ask whether the\nconviction—disregarding its underlying facts—necessarily has “the use, attempted use, or\nthreatened use of physical force” as an element of the offense. See id.\n\n How much physical force? Both parties implicitly assume that the answer here is the\nsame as it is under the identically worded elements clause of the Armed Career Criminal Act\n(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” under 18 U.S.C. § 924(e)(1)).\nAnd under the ACCA’s elements clause, “‘physical force’ means violent force—i.e., force\ncapable of causing physical pain or injury to another person.” Johnson v. United States,\n559 U.S. 133, 140 (2010) (“Johnson I”).2\n\n Although we have never said as much before, we agree with the parties. “[B]ecause both\nlaws share essentially the same definition (if not the same titles),” we can define a “serious\nviolent felony” under § 3559(c) the same way we define a “violent felony” under the ACCA,\n§ 924(e)(1). See United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009) (treating a “crime of\nviolence” under U.S.S.G. § 4B1.1(a) the same as a “violent felony” under § 924(e)(1)); United\nStates v. Harris, 853 F.3d 318, 320 (6th Cir. 2017).3 Thus, we now hold that the elements clause\n\n\n\n\n 2We refer to Johnson v. United States, 559 U.S. 133 (2010) as “Johnson I” to distinguish it from Johnson v.\nUnited States, 135 S. Ct. 2551 (2015) (“Johnson II”), in which the Court held the ACCA’s residual clause to be\nunconstitutionally vague.\n 3This follows from the “premise that when Congress uses the same language in two statutes having similar\npurposes . . . it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”\nSmith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality opinion) (citing Northcross v. Board of Ed. of Memphis\nCity Sch., 412 U.S. 427, 428 (1973) (per curiam)).\n\f No. 18-1194 United States v. Ruska Page 5\n\n\nof 18 U.S.C. § 3559(c)(2)(F)(ii) requires the same showing of Johnson I “violent force” that\nmust be shown under the elements clause of the ACCA.4\n\n The question then is whether Michigan Compiled Laws § 750.84 has as an element, the\nuse, attempted use, or threatened use of Johnson I “violent force.” Ruska contends that § 750.84\nrequires only the type of force necessary to commit a simple assault, which can extend to the\n“slightest unwanted physical touch.” See Johnson I, 559 U.S. at 137. But he acknowledges that\nwe already addressed this issue in Raybon v. United States, 867 F.3d 625, 632 (6th Cir. 2017)\n(holding that § 750.84 qualifies as a “crime of violence” under the elements clause of U.S.S.G.\n§ 4B1.2(a)(1)). There, we concluded that § 750.84 has as “an element . . . the use or threat of the\ntype of force required by Johnson [I].” Id. Although Raybon interpreted a different elements\nclause, we see no reason to depart from its sound analysis here. We hold, therefore, that\nMichigan Compiled Laws § 750.84 qualifies as a serious violent felony under the three strikes\nstatute.5\n\n IV.\n\n For these reasons, we affirm.\n\n\n\n\n 4The Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014), is not to the contrary.\nIn Castleman, the Court held that the requirement of “physical force” in the nearly identical elements clause of\n18 U.S.C. § 921(a)(33)(A)(ii) “is satisfied . . . by the degree of force that supports a common-law battery\nconviction.” Castleman, 572 U.S. at 168. But it was important that the Court was interpreting “physical force”\nwhere it was used to define “a misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9) (emphasis\nadded). Since all battery was a misdemeanor at common law, see Johnson I, 559 U.S. at 141, it was “likely that\nCongress meant to incorporate [a] misdemeanor-specific meaning of ‘force’” there. See Castleman, 572 U.S. at 164.\nIn contrast, it would make little sense for Congress to give “physical force” its common-law misdemeanor meaning\nwhen defining the term “serious violent felony.” See Johnson I, 559 U.S. at 141. In any event, were Castleman to\napply, it would compel an affirmance in this case since Ruska submits that Michigan Compiled Laws § 750.84\nrequires the type of force necessary to commit a common law assault or battery.\n 5Accordingly, we do not address the constitutionality of the residual clause in 18 U.S.C.\n§ 3559(c)(2)(F)(ii). We further note that even if the district court had erred in sentencing Ruska to life in prison\npursuant to the three strikes statute, that error would have been harmless since we can be certain that it would not\nhave affected his sentence. See United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005). The district court\nexplained that even if the three strikes statute did not apply, it would have still sentenced Ruska to life in prison by\neither departing upwards under the Guidelines or by varying upwards under the 18 U.S.C. § 3553(a) factors. And\nRuska does not challenge his sentence under either of those alternative grounds.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Eric Scott RUSKA, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0124p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-1194\\n v. │\\n │\\n │\\n ERIC SCOTT RUSKA, │\\n Defendant-Appellant. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Western District of Michigan at Marquette.\\n No. 2:17-cr-00025-1—Robert J. Jonker, Chief District Judge.\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Elizabeth A. LaCosse, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nMarquette, Michigan, for Appellant. Maarten Vermaat, UNITED STATES ATTORNEY’S\\nOFFICE, Marquette, Michigan, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n NALBANDIAN, Circuit Judge. Eric Scott Ruska appeals his sentence of life\\nimprisonment to the extent that the district court imposed it under the federal three strikes statute,\\n18 U.S.C. § 3559(c). For the following reasons, we affirm.\\n\\f No. 18-1194 United States v. Ruska Page 2\\n\\n\\n I.\\n\\n In 2002, Ruska drove a nineteen-year-old woman down a two-track road in rural\\nMichigan. He then stopped the car and revealed he had a handgun. The woman asked him\\nseveral times to take her home, but Ruska refused. Instead, he raped her three times. Although\\nRuska was first charged with three counts of first-degree criminal sexual conduct, he pleaded\\nguilty to a reduced charge—assault with intent to do great bodily harm less than murder. As a\\nresult, the court sentenced him to one year in jail and two years of probation.\\n\\n After his release from jail the following year, Ruska raped another woman. He also\\nforced this woman to sit partially naked on a sofa for about three hours while he threatened to\\nbeat her. He then drove her around for several hours and suggested he would kill her before he\\neventually took her back to her home. For this crime, Ruska pleaded guilty to one count of third-\\ndegree criminal sexual conduct and kidnapping. And he was sentenced to between ten and\\nfifteen years in prison.\\n\\n Within two years after he was discharged on parole, Ruska attacked another woman.\\nThis woman had the misfortune of accepting his invitation to join him on a fishing trip. The two\\nhad been fishing on Ruska’s boat for a few hours before Ruska “snapped” and said to her: “I’m\\nnot out here for the enjoyment of fishing, but this is what I’m about to do and you either go along\\nwith it or I have a gun and I’ll shoot you with it.” [R. 57, Presentence Report at PageID #322 ¶\\n30.] He then raped her repeatedly over several days until the police found them both and\\narrested Ruska.\\n\\n For these offenses—committed in the Hiawatha National Forest, which is under federal\\nterritorial jurisdiction—the government charged Ruska with one count of kidnapping and three\\ncounts of sexual abuse. Ruska pleaded guilty to all the charges and the district court sentenced\\nhim to life in prison for each count. The court arrived at that sentence based on three alternative\\ngrounds: First, the court ruled that the federal “three strikes” statute, 18 U.S.C. § 3559(c),\\nmandated a life sentence. Second, the court ruled that an upward departure to life from Ruska’s\\nGuidelines range was justified based on U.S.S.G. §§ 4A1.3, 5K2.21, and 5K2.8. And third, the\\n\\f No. 18-1194 United States v. Ruska Page 3\\n\\n\\ncourt ruled that an upward variance to life was warranted based on the 18 U.S.C. § 3553(a)\\nfactors. Ruska now appeals this sentence.\\n\\n II.\\n\\n Ruska only challenges the first of these rulings: that he qualified for a life sentence under\\nthe federal three strikes statute. Because that ruling is a legal conclusion, we review it de novo.\\nSee United States v. Prater, 766 F.3d 501, 507 (6th Cir. 2014).\\n\\n III.\\n\\n The three strikes statute mandates a life sentence for defendants who are convicted of a\\n“serious violent felony” and have already been convicted of at least two other serious violent\\nfelonies. 18 U.S.C. § 3559(c). The statute defines what counts as a serious violent felony, or\\n“strike,” using a “familiar three-part structure, with an enumerated clause, [an elements] clause,\\nand a residual clause.” United States v. Johnson, 915 F.3d 223, 228 (4th Cir. 2019). A prior\\nconviction may qualify as a serious violent felony under any of those clauses. See\\n§ 3559(c)(2)(F)(i)–(ii).\\n\\n The district court determined that Ruska had three strikes based on his convictions for the\\ncrimes involving the three women he attacked. As relevant here, the district court ruled that his\\n2002 conviction for assault with intent to do great bodily harm less than murder, Mich. Comp.\\nLaws § 750.84,1 qualified as a serious violent felony under both the elements and residual\\nclauses of the three strikes statute. Ruska argues that this was error.\\n\\n More precisely, Ruska argues that Michigan Compiled Laws § 750.84 does not have “as\\nan element, the use, attempted use, or threatened use of physical force,” as it must to qualify\\nunder the elements clause. See 18 U.S.C. § 3559(c)(2)(F)(ii). And he argues that the residual\\nclause is unconstitutionally vague because of the Supreme Court’s decision in Sessions v.\\nDimaya, 138 S. Ct. 1204 (2018). We consider whether Michigan Compiled Laws § 750.84\\n\\n 1At the time of Ruska’s conviction, section 750.84 provided: “Any person who shall assault another with\\nintent to do great bodily harm, less than the crime of murder, shall be guilty of a felony punishable by imprisonment\\nin the state prison not more than 10 years, or by fine of not more than 5,000 dollars.” Mich. Comp. Laws § 750.84\\n(amended 2013). The current version of the statute “is not materially different.” Raybon v. United States, 867 F.3d\\n625, 632 (6th Cir. 2017).\\n\\f No. 18-1194 United States v. Ruska Page 4\\n\\n\\nqualifies under the elements clause first to “avoid [any] unnecessary adjudication of\\nconstitutional issues.” Brown v. United States, 20 F. App’x 373, 374 (6th Cir. 2001).\\n\\n To determine whether a prior conviction qualifies under the elements clause, we employ\\nthe categorical approach. See United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019)\\n(en banc) (noting that the Supreme Court has historically “instructed federal sentencing courts to\\nuse the ‘categorical approach’” in similar contexts). That means we ask whether the\\nconviction—disregarding its underlying facts—necessarily has “the use, attempted use, or\\nthreatened use of physical force” as an element of the offense. See id.\\n\\n How much physical force? Both parties implicitly assume that the answer here is the\\nsame as it is under the identically worded elements clause of the Armed Career Criminal Act\\n(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” under 18 U.S.C. § 924(e)(1)).\\nAnd under the ACCA’s elements clause, “‘physical force’ means violent force—i.e., force\\ncapable of causing physical pain or injury to another person.” Johnson v. United States,\\n559 U.S. 133, 140 (2010) (“Johnson I”).2\\n\\n Although we have never said as much before, we agree with the parties. “[B]ecause both\\nlaws share essentially the same definition (if not the same titles),” we can define a “serious\\nviolent felony” under § 3559(c) the same way we define a “violent felony” under the ACCA,\\n§ 924(e)(1). See United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009) (treating a “crime of\\nviolence” under U.S.S.G. § 4B1.1(a) the same as a “violent felony” under § 924(e)(1)); United\\nStates v. Harris, 853 F.3d 318, 320 (6th Cir. 2017).3 Thus, we now hold that the elements clause\\n\\n\\n\\n\\n 2We refer to Johnson v. United States, 559 U.S. 133 (2010) as “Johnson I” to distinguish it from Johnson v.\\nUnited States, 135 S. Ct. 2551 (2015) (“Johnson II”), in which the Court held the ACCA’s residual clause to be\\nunconstitutionally vague.\\n 3This follows from the “premise that when Congress uses the same language in two statutes having similar\\npurposes . . . it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”\\nSmith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality opinion) (citing Northcross v. Board of Ed. of Memphis\\nCity Sch., 412 U.S. 427, 428 (1973) (per curiam)).\\n\\f No. 18-1194 United States v. Ruska Page 5\\n\\n\\nof 18 U.S.C. § 3559(c)(2)(F)(ii) requires the same showing of Johnson I “violent force” that\\nmust be shown under the elements clause of the ACCA.4\\n\\n The question then is whether Michigan Compiled Laws § 750.84 has as an element, the\\nuse, attempted use, or threatened use of Johnson I “violent force.” Ruska contends that § 750.84\\nrequires only the type of force necessary to commit a simple assault, which can extend to the\\n“slightest unwanted physical touch.” See Johnson I, 559 U.S. at 137. But he acknowledges that\\nwe already addressed this issue in Raybon v. United States, 867 F.3d 625, 632 (6th Cir. 2017)\\n(holding that § 750.84 qualifies as a “crime of violence” under the elements clause of U.S.S.G.\\n§ 4B1.2(a)(1)). There, we concluded that § 750.84 has as “an element . . . the use or threat of the\\ntype of force required by Johnson [I].” Id. Although Raybon interpreted a different elements\\nclause, we see no reason to depart from its sound analysis here. We hold, therefore, that\\nMichigan Compiled Laws § 750.84 qualifies as a serious violent felony under the three strikes\\nstatute.5\\n\\n IV.\\n\\n For these reasons, we affirm.\\n\\n\\n\\n\\n 4The Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014), is not to the contrary.\\nIn Castleman, the Court held that the requirement of “physical force” in the nearly identical elements clause of\\n18 U.S.C. § 921(a)(33)(A)(ii) “is satisfied . . . by the degree of force that supports a common-law battery\\nconviction.” Castleman, 572 U.S. at 168. But it was important that the Court was interpreting “physical force”\\nwhere it was used to define “a misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9) (emphasis\\nadded). Since all battery was a misdemeanor at common law, see Johnson I, 559 U.S. at 141, it was “likely that\\nCongress meant to incorporate [a] misdemeanor-specific meaning of ‘force’” there. See Castleman, 572 U.S. at 164.\\nIn contrast, it would make little sense for Congress to give “physical force” its common-law misdemeanor meaning\\nwhen defining the term “serious violent felony.” See Johnson I, 559 U.S. at 141. In any event, were Castleman to\\napply, it would compel an affirmance in this case since Ruska submits that Michigan Compiled Laws § 750.84\\nrequires the type of force necessary to commit a common law assault or battery.\\n 5Accordingly, we do not address the constitutionality of the residual clause in 18 U.S.C.\\n§ 3559(c)(2)(F)(ii). We further note that even if the district court had erred in sentencing Ruska to life in prison\\npursuant to the three strikes statute, that error would have been harmless since we can be certain that it would not\\nhave affected his sentence. See United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005). The district court\\nexplained that even if the three strikes statute did not apply, it would have still sentenced Ruska to life in prison by\\neither departing upwards under the Guidelines or by varying upwards under the 18 U.S.C. § 3553(a) factors. And\\nRuska does not challenge his sentence under either of those alternative grounds.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2492,"cells":{"id":{"kind":"number","value":4627972,"string":"4,627,972"},"name":{"kind":"string","value":"Renee FAZICA, Plaintiff-Appellee, v. Zachary JORDAN, Josh Tucker, Carlos Cordova, and Mark Fletcher, Oakland County Sheriff's Deputies, Defendants-Appellants."},"name_abbreviation":{"kind":"string","value":"Renee Fazica v. Zachary Jordan"},"decision_date":{"kind":"string","value":"2019-06-10"},"docket_number":{"kind":"string","value":"18-1457"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Merritt, Guy, Moore\", \"parties\": \"\", \"opinions\": [{\"author\": \"KAREN NELSON MOORE, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0125p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n RENEE FAZICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-1457\\n v. │\\n │\\n │\\n ZACHARY JORDAN, JOSH TUCKER, CARLOS CORDOVA, │\\n and MARK FLETCHER, Oakland County Sheriff’s │\\n Deputies, │\\n Defendants-Appellants. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:16-cv-13563—Sean F. Cox, District Judge.\\n\\n Argued: January 17, 2019\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: MERRITT, GUY, and MOORE, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Brandon K. Buck, Peter L. Menna, OAKLAND COUNTY CORPORATION\\nCOUNSEL, Pontiac, Michigan, for Appellants. Richard A. Moore, ROMANO LAW, PLLC,\\nPleasant Ridge, Michigan, for Appellee. ON BRIEF: Brandon K. Buck, OAKLAND\\nCOUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellants. Richard A. Moore,\\nROMANO LAW, PLLC, Pleasant Ridge, Michigan, for Appellee.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n KAREN NELSON MOORE, Circuit Judge. Plaintiff Renee Fazica was arrested for\\ndrunk driving and taken to the Bloomfield County Police Department, and then to Oakland\\nCounty Jail. Prior to her arrival at Oakland County, the jail was alerted that she was intoxicated,\\nyelling, and spitting. A Cell Extraction Team of Oakland County Jail officers including Officers\\nFletcher, Cordova, Tucker, and Jordan met Fazica upon her arrival. They roughly removed her\\nfrom the vehicle and immediately applied a spit hood over her head that nearly entirely obscured\\nher vision. The Cell Extraction Team moved her into the jail, handcuffed and in a bent-over\\nposition. They handled her forcefully and threatened her with a taser. The entirely male team\\ntook Fazica to a room in the jail where she was made to lie on her stomach and was strip\\nsearched. Her pants were physically torn off her; one officer placed his hands on her genitals\\nand another groped her breasts. Fazica was then made to walk to a cell wearing only her bra and\\nthe spit hood. The spit hood had obscured her vision for much of the incident, largely preventing\\nher from attributing specific acts to specific officers.\\n\\n Fazica sued under 42 U.S.C. § 1983, alleging that Fletcher, Cordova, Tucker, and Jordan\\nused excessive force against her in violation of her Fourth and Fourteenth Amendment rights.\\nDefendants moved for summary judgment on qualified-immunity grounds, arguing only that\\nFazica cannot show each officer’s personal involvement in the allegedly unconstitutional acts.\\nThe district court denied their motion. Because a reasonable jury could find, based on the record\\nevidence, that each Defendant officer either committed or observed and failed to stop the\\nallegedly unconstitutional acts, we AFFIRM the district court’s denial of summary judgment.\\n\\n I. BACKGROUND\\n\\n On October 16, 2014, a heavily intoxicated Fazica was pulled over by Bloomfield\\nTownship police officers on suspicion of drunk driving. R. 16-3 (Fazica Dep. at 21–22) (Page\\nID #159–60). After a blood sample was collected at the hospital, Fazica was taken to the\\nBloomfield Township Police Department. Id. at 24, 28 (Page ID #162, 166). She was upset by\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 3\\n\\n\\nher arrest and detention and vocally expressed her discontent. An officer at the Bloomfield\\npolice station informed her that if she did not lie down and go to sleep, she would be transferred\\nto Oakland County Jail. Id. at 30 (Page ID #168). Oakland County Jail sometimes receives\\ninmates from other jails for various reasons—it has more cells and its staff is trained to deal with\\nunruly inmates. R. 16-7 (Fletcher Dep. at 11–12) (Page ID #257). A staff member from\\nBloomfield called Oakland to inform the jail that Fazica would be arriving at Oakland and that\\nshe was “intoxicated, yelling and spitting.” R. 16-4 (Case Report) (Page ID #226).\\n\\n Fazica was driven by a Bloomfield Township officer to the Oakland County Jail. R. 16-3\\n(Fazica Dep. at 30–31) (Page ID #168–69). While she was still in this officer’s vehicle, he told\\nher that she “better be good over here because they won’t put up with you.” Id. Upon arriving at\\nthe Oakland County Jail, Fazica noticed that four male officers were standing waiting for the\\nvehicle. Id. at 32 (Page ID #170). The Bloomfield Township officer exited the vehicle and\\njoined the other four, who were laughing. Id. Fazica remained in the back seat, silent and facing\\nforward. Id. Suddenly, one of the four Oakland County officers opened the passenger side door\\nin the back and another opened the driver’s side door. Id. The Oakland County officers put her\\non the ground, face down and on her stomach. Id. at 37 (Page ID #175). They placed a spit\\nmask over her head and face. The mask was white and of a “soft,” “thicker” material that went\\nup to the “very top of the bridge of her nose, like sort of close to her eyebrow line” so that she\\n“could see just a tiny, tiny bit out of the top of [her] mask.” Id. at 38–39 (Page ID #176–77).\\nThe mask is designed such that the white opaque portion covers the wearer’s mouth to protect\\nofficers from being spit on. The top portion is made of a black mesh that is designed to allow the\\nperson wearing it to see out. R. 16-7 (Fletcher Dep. at 16) (Page ID #258). However, “if it were\\nnot pulled all the way down” or “[i]f the liner is pulled up too high,” it is possible that the person\\nwearing the mask would not be able to see. R. 19-6 (Tucker Dep. at 18) (Page ID #426).\\n\\n One officer pulled Fazica’s arms up and back behind her; Fazica believes that he did so to\\nchange her handcuffs out of those used by the Bloomfield Township police into new ones. R.\\n16-3 (Fazica Dep. at 33) (Page ID #171). She told the officers that “it was hurting me really bad\\nbecause it was my bad arm.” Id. at 37 (Page ID #175). She was told to shut up. Id. She heard\\nthe Bloomfield Township officer get back in his car to leave. Id.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 4\\n\\n\\n Fazica was then picked up and stood on her feet. The officers walked her up a stair and\\nthrough a door into a hallway. Id. at 40 (Page ID #178). Once she was up the stair, the officers\\nbent her over so that her face was toward the floor. Id. at 41–42 (Page ID #179–80). At that\\npoint, one officer put his hands on her neck. He held her neck with four fingers of each hand on\\nthe back of her neck and his thumbs in the front of her neck, with the thumbs a couple of inches\\naway from each other. Id. at 44 (Page ID #182). Fazica cried and told the officers that they were\\nhurting her and that she could not breathe, but the officer pushed his fingers harder on her neck.\\nId. One officer stood by her side and told her repeatedly: “follow my voice or I’ll tase you.” Id.\\nat 42 (Page ID #180). Fazica maintains that she could not see while the officers transported her\\nthrough the building in this manner. She believes that she was taken to “a room because [she]\\nthought they closed the door on it.” Id. at 45 (Page ID #183).\\n\\n Fazica had been wearing the jumpsuit that she had been issued at the Bloomfield\\nTownship jail with the arms tied around her waist and no underpants. She also wore a bra and\\nshirt. Id. at 43, 46 (Page ID #181, 184). Once the officers brought her into the room, they placed\\nher face down on her stomach in a prone position on the floor, still wearing the spit hood. Id. at\\n47 (Page ID #185). She was “freaking out” and asking “what are you guys doing,” but she was\\nnot physically resisting. Id. at 45–46 (Page ID #183–84). One officer “pushed her face down”\\nand an officer “said everyone gets stripped search [sic], just shut up.” Id. at 45 (Page ID #183).\\nFazica does not recall how the officers got her shirt off. An officer ripped her pants off from\\nbehind—literally tearing them apart. Id. at 46 (Page ID #184). One officer then “had [her] butt\\ncheeks spread apart and there was [sic] hands like he was feeling for something.” Id. He placed\\nhis hands on her genitals. Id. at 71 (Page ID #209). Another officer put his hands up the front of\\nFazica’s bra and felt her nipples; Fazica felt his hands shaking as he did it. The officer who felt\\nFazica’s breasts “asked what the clips were, and the gentleman behind [her] said they were the\\nclips to [her] bra, don’t worry about it.” Id. at 47 (Page ID #185). The same officer who had his\\nhand on her breasts called her a bitch and one officer “kind of slap punched [her] when [she] was\\nin the strip search room because he was mad because [she] was hysterical.” Id. at 48, 52 (Page\\nID #186, 190). The officers did not remove her bra. Id. at 47 (Page ID #185). She could not\\nhear any female staff in the room and believes that no other females were present during the strip\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 5\\n\\n\\nsearch. Id. Fazica knew that the officers who were strip searching her and who were present in\\nthe room were male because of their voices and their hands. Id. at 48 (Page ID #186).\\n\\n After the strip search, the officers walked her to a cell wearing nothing more than her bra\\nand the spit hood. Id. at 49 (Page ID #187). They “put [her] onto the ground, they threw a pair\\nof scrubs into the corner of the [cell]” and then “they ripped the mask off and the door shut.” Id.\\nWhen the spit hood was removed, Fazica saw “a couple males walk away laughing.” Id. She\\ntestified that it was around 10:00 P.M. by that point. Id. at 50 (Page ID #188). Her nose was\\nbleeding, and she got dressed. Id. She was told that she would see a nurse, but no nurse ever\\narrived. Id. Fazica was booked and photographed. Id. She was returned to her cell. Someone\\nasked her over the speaker in her cell whether she had come to the jail naked. Id. at 51 (Page ID\\n#189). Someone at the jail gave her clothes from Goodwill and she was released on the morning\\nof October 17, 2014. Id. She was bruised from head to toe after the incident. Id. The day after\\nshe was released, she went to the hospital with her husband. Id. at 55 (Page ID #193). They did\\nnot give her medicine, but “gave [her] a list of what to do, soaking.” Id.\\n\\n The Oakland County Sheriff’s Office Case Report for the incident denotes both the\\n“Report Date/Time” and “Occurrence Date/Time as October 16, 2014 at 8:57 PM. R. 16-4 (Case\\nReport) (Page ID #223). However, the “Narrative” portion of the Case Report appears to have\\nbeen written on November 12, 2014 at 3:46 PM. The Case Report was created by Officer\\nDwayne Rodriguez. Under “People” it lists a nurse named Thorpe (with no first name), Renee\\nFazica, and police officers Carlos Cordova, Dwayne Rodriguez, Josh Tucker, Mark Fletcher,\\nZachary Jordan, and Paul Nicotri. The “Narrative” portion chronicles the incident and relates\\nthat the Cell Extraction Team included five, rather than four, members:\\n\\n Booking received a call that Bloomfield Township was bringing in a new arrest,\\n Inmate Fazica . . . and that she is intoxicated, yelling and spitting. . . . Sgt. Nicotri\\n was notified. Supervisor Jordan was lead taser, Dep. Tucker was lead, Dep.\\n Cordova and [Rodriguez] were wings and Supervisor Fletcher was four man\\n [sic]. . . . Inmate Fazica was yelling as the door to the patrol car was opened.\\n Dep. Tucker gained control of Inmate Fazica and with the assistance of Dep.\\n Cordova and myself she was removed from the car. Dep. Tucker gained control\\n of her head, Dep. Cordova and [Rodriguez] took control of her arms. A spit hood\\n was then placed over her head. A pat down was then conducted for the safety and\\n security of the Main Jail. Inmate Fazica was then escorted to the Annex and taken\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 6\\n\\n\\n into Cell 1E-4. Inmate was told to lay down on the floor and she complied.\\n Inmate was then searched. The handcuffs were then removed. Inmate Fazica was\\n ordered to stay on the floor until the cell door was closed. All team members then\\n left the cell without further incident. Nurse Thorpe then medically cleared inmate\\n Fazica of any injuries. Event entered into IMACS.1\\n\\nId. (Page ID #226). Although Rodriguez was a member of the Cell Extraction Team that\\nreceived Fazica that day, he was not named as a Defendant in the complaint. Nicotri, a Sergeant\\non duty who was not a member of the Cell Extraction Team was named as a Defendant.\\n\\n All named Defendants claim to have no memory whatsoever of the incident involving\\nFazica. R. 16-6 (Cordova Dep. at 9–10) (Page ID #247); R. 19-4 (Jordan Dep. at 8) (Page ID\\n#399); R. 16-7 (Fletcher Dep. at 10–11) (Page ID #257); R. 19-6 (Tucker Dep. at 6–7) (Page ID\\n#423). They were all deposed and testified in generalities about the practices of the Cell\\nExtraction Team and their work at the jail. They testified that there are female officers who are\\ntrained to be members of Cell Extraction Teams, but that the gender of the inmate does not\\nimpact the gender composition of the Cell Extraction Team assigned to receive the inmate. R.\\n16-6 (Cordova Dep. at 14) (Page ID #248). Defendants testified that they do not use a chokehold\\nduring the extraction. Id. at 18 (Page ID #249). However, they do use “head control” using\\n“pressure points,” most commonly “behind the ear” and “underneath the eye.” R. 19-4 (Jordan\\nDep. at 13–14) (Page ID #401). They also “bend the prisoner over so that their face is facing the\\nground.” Id. at 14 (Page ID #401).\\n\\n Any person who comes to the Oakland County Jail after having been arrested for a felony\\nis strip searched. Id. at 10 (Page ID #400). Female inmates are taken to a location in the jail\\ncalled the Annex when they first arrive. R. 16-6 (Cordova Dep. at 13–14) (Page ID #248). The\\nofficers testified that in a strip search, they prefer to let the inmate remove her own clothing, but\\nthat if the inmate is combative, members of the Cell Extraction Team will physically remove the\\ninmate’s clothing. They testified that the strip search is normally performed with the inmate\\nstanding. If the inmate is combative, however, it can be performed with the inmate lying on the\\nground in a prone position. R. 16-7 (Fletcher Dep. at 18) (Page ID #259). However, all\\n\\n 1IMACS is “the computer system that [the officers] use in order to keep track of all [their] inmates.”\\nR. 16-7 (Fletcher Dep. at 21) (Page ID #260).\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 7\\n\\n\\nDefendant officers testified that once the inmate’s clothing has been removed, the inspection is\\nmerely visual and does not involve physical probing of the inmate. R. 19-4 (Jordan Dep. at 11)\\n(Page ID #400); R. 16-6 (Cordova Dep. at 16) (Page ID #248); R. 16-7 (Fletcher Dep. at 18)\\n(Page ID #259). Defendant Tucker testified that if a strip search is done while an inmate is in the\\nprone position on the floor, the officers will “roll them over on one side, back to their stomach,\\nroll them over on the other side to make sure there’s no weapons or contraband.” R. 19-6\\n(Tucker Dep. at 11–12) (Page ID #424). Some officers testified that all-male Cell Extraction\\nTeams are permitted to perform strip searches on female inmates. R. 16-7 (Fletcher Dep. at 25,\\n28) (Page ID #261). Only one Defendant, Jordan, testified that “[i]f we don’t have a female team\\nmember available we’ll have one of our non team female deputies assist us in doing it. . . . It’s\\nalways done by the same sex.” R. 19-4 (Jordan Dep. at 10–11) (Page ID #400). Defendants also\\ntestified that if the strip search is performed in the Annex prior to the inmate being taken to her\\ncell, she is given her clothes after the strip search and not required to walk naked to her cell. R.\\n16-6 (Cordova Dep. at 16) (Page ID #248).\\n\\n Fazica filed her first Complaint on October 5, 2016 and an Amended Complaint on\\nJanuary 30, 2017. R. 7 (First Am. Compl.) (Page ID #46). The complaints named Nicotri,\\nFletcher, Cordova, Tucker, and Jordan as Defendants but did not name Rodriguez. Fazica\\nbrought three claims: (1) use of excessive force in violation of the Fourth and Fourteenth\\nAmendments, pursuant to 42 U.S.C. § 1983; (2) gross negligence, willful and wanton\\nmisconduct, assault, battery, and intentional infliction of emotional distress; and (3) deprivation\\nof liberty without due process of law, pursuant to 42 U.S.C. § 1983. Id. Defendants moved for\\njudgment on the pleadings or in the alternative summary judgment on November 9, 2017, raising\\nthe narrow argument that Plaintiff had failed to make specific allegations against particular\\nDefendants. R. 16 (Mot. for Summ. J. at 1, 15–19) (Page ID #106, 130–35). On March 15,\\n2018, the district court held a hearing on the motion. R. 36 (Mot. Hr’g Tr.) (Page ID #635). On\\nMarch 21, 2018 the district court issued its order granting summary judgment with respect to\\nDefendant Nicotri and denying summary judgment with respect to the other four named\\nDefendants: Jordan, Tucker, Cordova, and Fletcher, “because a genuine issue of material fact\\nexists as to whether each defendant was present and personally involved in any violation of\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 8\\n\\n\\nPlaintiff’s rights.” R. 28 (Op. and Order at 1) (Page ID #600). On April 18, 2018, Defendants\\nfiled their timely notice of appeal. R. 32 (Notice of Appeal) (Page ID #629).\\n\\n II. DISCUSSION\\n\\nA. Jurisdiction\\n\\n We have jurisdiction in this interlocutory appeal based on the district court’s denial of\\nsummary judgment under 28 U.S.C. § 1291. “[A]ny summary judgment order denying qualified\\nimmunity is immediately appealable to the extent it is ‘based on a pure issue of law.’” Pollard v.\\nCity of Columbus, 780 F.3d 395, 401 (6th Cir. 2015) (quoting Leary v. Livingston County,\\n528 F.3d 438, 447–48 (6th Cir. 2008)). For the purposes of this appeal, Defendants concede any\\nfactual disputes and adopt the version of events put forth by Fazica. Def. Br. at vi; Moldowan v.\\nCity of Warren, 578 F.3d 351, 370 (6th Cir. 2009) (quoting Berryman v. Rieger, 150 F.3d 561,\\n563 (6th Cir. 1998) (noting that if “the defendant disputes the plaintiff’s version of the story, the\\ndefendant must nonetheless be willing to concede the most favorable view of the facts to the\\nplaintiff for purposes of the appeal”)). This leaves us with a question of pure law over which we\\nhave jurisdiction.\\n\\nB. Standard of Review\\n\\n We review de novo the district court’s denial of qualified immunity on summary\\njudgment. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996); see also Binay v.\\nBettendorf, 601 F.3d 640, 646 (6th Cir. 2010). The relevant question at summary judgment is\\n“whether the evidence presents a sufficient disagreement to require submission to a jury or\\nwhether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty\\nLobby, Inc., 477 U.S. 242, 251–52 (1986).\\n\\nC. Individual Liability\\n\\n Normally, we review a defendant’s assertion of qualified immunity in two steps:\\n(1) determining whether the defendant violated a constitutional right and (2) deciding whether\\nthat right was clearly established at the time of the incident. See Shreve v. Franklin County, 743\\nF.3d 126, 134 (6th Cir. 2014). Here, however, Defendants challenge the district court’s denial of\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 9\\n\\n\\nsummary judgment on one narrow ground, and we limit our review to that question: whether\\nFazica has sufficiently offered proof of each individual Defendant’s alleged constitutional\\nviolations such that a reasonable jury could find him personally involved. See Appellant Br. at 8.\\nWe therefore address only the question of proof of Defendants’ individual liability for acts that\\nFazica alleges amount to unconstitutional excessive force; we do not delve into whether the\\nphysical contact was in fact excessive force or whether its unconstitutionality was clearly\\nestablished at the time of the incident.\\n\\n For Fazica’s claim to survive summary judgment, she must point to sufficient record\\nevidence to create a “disputed issue of material fact as to whether [each individual officer] was\\npersonally involved in the conduct that violated the [plaintiff’s constitutional rights].” Binay,\\n601 F.3d at 651. This is because “[e]ach defendant’s liability must be assessed individually\\nbased on his own actions.” Id. at 650. “As a general rule, mere presence at the scene of a\\n[constitutional violation], without a showing of direct responsibility for the action, will not\\nsubject an officer to liability.” Ghandi v. Police Dep’t of Detroit, 747 F.2d 338, 352 (6th Cir.\\n1984).\\n\\n Having personal involvement in or direct responsibility for the violation of Plaintiff’s\\nconstitutional rights does not, however, necessarily mean that each Defendant officer directly\\nplaced hands on her. There are several ways that a defendant officer may violate a pretrial\\ndetainee’s constitutional rights. A plaintiff who claims that a defendant used excessive force\\nmust show that the officer “(1) actively participated in the use of excessive force, (2) supervised\\nthe officer who used excessive force, or (3) owed the victim a duty of protection against the use\\nof excessive force.” Binay, 601 F.3d at 650 (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir.\\n1997)). “[A] police officer who fails to act to prevent the use of excessive force may still be held\\nliable where ‘(1) the officer observed or had reason to know that excessive force would be or\\nwas being used, and (2) the officer had both the opportunity and the means to prevent the harm\\nfrom occurring.’” Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008) (quoting Turner,\\n119 F.3d at 429).\\n\\n Defendants argue that because Fazica cannot clearly attribute particular uses of force to\\nparticular Defendants, she cannot prove that any particular Defendant’s conduct violated her\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 10\\n\\n\\nconstitutional rights. Def. Br. at 19–20. For example, they argue that she cannot prove whether\\nit was Defendant Officer Fletcher, Cordova, Tucker, or Jordan who was the one to twist her arm\\nbehind her back, rip her pants off, touch her genitals, etc., and that therefore she must lose at\\nsummary judgment. We reject Defendants’ argument and conclude that a reasonable jury could\\nfind that each of the named Defendants violated Fazica’s clearly established constitutional rights\\neither by directly using excessive force against her or by observing others doing so and failing to\\nact.\\n\\n Several of our cases address defendants’ assertions of qualified immunity in instances\\nwhere the plaintiffs had difficulty identifying the perpetrator of unconstitutional acts. In Binay v.\\nBettendorf, five or six masked officers executed a search warrant on the plaintiffs’ home.\\n601 F.3d at 643–44. The plaintiffs claimed that the officers used excessive force in executing the\\nwarrant by handcuffing them and holding them at gunpoint while interrogating them. Id. at 644.\\nDefendant Officer Bettendorf argued that he should be granted summary judgment because “he\\nhad no personal involvement in the alleged use of excessive force beyond mere presence at the\\nscene.” 601 F.3d at 651. However, because there was evidence that he “was in the room with\\nPlaintiffs during the interrogation and at the time Plaintiffs were handcuffed” and he testified that\\nhe had “carr[ied] a pistol during the raid” we concluded that there was “a question of fact as to\\nwhether he was one of the officers pointing a gun at or securing Plaintiffs during some part of the\\nraid.” Id. (emphasis added). After cataloging the evidence that linked this defendant to the\\nconstitutionally violative conduct, we noted: “Furthermore, the fact that Defendants wore masks\\nduring the raid made it exceedingly difficult for Plaintiffs to identify with precision which\\nofficers engaged in which conduct.” Id. We affirmed the district court’s determination that the\\nplaintiffs had marshalled enough evidence to preclude summary judgment on Officer\\nBettendorf’s individual involvement.\\n\\n In Burley v. Gagacki (“Burley I”), 729 F.3d 610 (6th Cir. 2013), the plaintiffs alleged that\\nstate, local, and federal defendants were members of a group of officers that used excessive force\\nwhen executing a search warrant of the plaintiffs’ home. Id. at 613. The officers who conducted\\nthe raid wore masks and refused to reveal their names. Id. at 614. The federal defendants stalled\\nduring discovery and waited until the limitations period had run before asserting “that they did\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 11\\n\\n\\nnot participate in the raid of plaintiffs’ home but were instead executing a search warrant”\\nnearby. Id. at 615. The district court granted summary judgment to the state and local\\ndefendants who the record showed “were present at the scene” but “were not part of the entry\\nteam and their role was limited to perimeter security.” Id. at 619–20. The case against the\\nfederal officers went to trial. One plaintiff testified that she recognized the voice of one of the\\nfederal officers as belonging to an officer who had raided her home. Id. at 616–17. After the\\nclose of the plaintiffs’ case the district court granted judgment as a matter of law to the federal\\ndefendants. Id. at 617. We affirmed the district court’s grant of summary judgment to the state\\nand local defendants “[b]ecause no evidence place[d] the state and local defendants inside\\nplaintiffs’ home at the appropriate time to witness or respond to any unconstitutional conduct\\nthat may have occurred.” Id. at 620. We reversed the district court’s grant of summary\\njudgment to the federal defendants, however, concluding that enough evidence existed such that\\na jury should have been allowed to decide whether the federal defendants were personally\\ninvolved in the raid. Id. at 622. We remarked that where a jury could find that one named\\ndefendant “was part of the entry team” that used excessive force based on the plaintiff’s\\nrecognizing his voice from the incident, and that defendant “and the other federal defendants\\nworked as a team at all times relevant to this case, a jury could reasonably infer that the other\\nfederal defendants also (1) were personally involved in the alleged use of excessive force or\\n(2) failed to intervene to prevent it.” Id. The state and local defendants’ “mere presence at the\\nscene” was insufficient for the plaintiffs’ claim against them to survive summary judgment, but\\nthe federal defendants’ possible participation in a small group that engaged with the victim in an\\narguably unconstitutional manner sufficed.2 See id. at 620 (quoting Ghandi, 747 F.2d at 352).\\n\\n In Pershell v. Cook, we again affirmed the district court’s denial of summary judgment\\non grounds of qualified immunity even though plaintiff was unable decisively to identify which\\nmember of a small group of defendants had struck him. 430 F. App’x 410, 413 (6th Cir. 2011).\\n\\n 2\\n Burley I was an appeal from a district court’s post-proof judgment as a matter of law and Burley II was an\\nappeal from the trial jury’s verdict. Burley v. Gagacki (Burley II), 834 F.3d 606, 614 (6th Cir. 2016) (“Here,\\nplaintiffs’ complaint advanced beyond [the motion to dismiss] stage, through discovery and summary judgment, and\\nto trial.”). Fazica is merely arguing that she should be able to present her claims to a jury in the first place.\\nProcedurally, Fazica’s claim is at a stage beyond which the Burley plaintiffs had already long passed when the\\nBurley appellate decisions were issued.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 12\\n\\n\\nDuring the relevant incident, Pershell had been knocked to his stomach on the floor with his\\nglasses removed, unable to see which of the five officers present struck him as he lay there. Id.\\nHe had some sense of where the various officers had been located prior to the removal of his\\nglasses. Id. at 416 (“Although Pershell was unable to see the officers standing above and behind\\nhim at the precise moment of the blows to his body, he has provided significant information\\nabout the location and conduct of the officers based on his own sensory observations.”). Pershell\\ndid not identify three of the five the officers by name—his deposition testimony referred to them\\nonly as “Troopers ‘A’, ‘B’, and ‘C’.” Id. at 412. The defendants’ depositions provided\\nindefinite, sometimes conflicting accounts of their locations and roles in the use of force against\\nhim. Id. at 413–16. We concluded that “[t]hese sources will provide the jury with sufficient\\ninformation to determine the liability of each individual defendant for the alleged constitutional\\nviolation.” Id. at 416. In doing so, we contrasted Pershell’s case with “those in which the\\nplaintiff lacked sufficient information to name responsible defendants or to offer an informed\\naccount of the facts,” in which granting summary judgment to the defendants would be\\nappropriate. Id. (citing Totman v. Louisville Jefferson Cty. Metro Gov’t, 391 F. App’x 454, 464–\\n65 (6th Cir. 2010) (affirming grant of summary judgment where plaintiff could not identify\\nseveral unknown officers who could have been responsible for the beating in the booking area\\nand where the named defendant had not been present for the beating in the cell); Combs v.\\nWilkinson, 315 F.3d 548, 557–58 (6th Cir. 2002) (affirming grant of summary judgment on\\nplaintiffs’ claims against unidentified and totally unknown officers); Thornton v. Spooner, 872\\nF.2d 1029, 1989 WL 34026, at *2 (6th Cir. 1989) (unpublished table opinion) (affirming grant of\\nsummary judgment where plaintiff’s testimony either exculpated the named defendants or was\\nentirely speculative and the plaintiff did not allege a failure to intervene).\\n\\n Binay, Burley, and Pershell therefore stand for the proposition that where a plaintiff who\\nwas unable to identify clearly which officers committed specific acts during the incident\\nproduces evidence that places an individual defendant in a small group of officers that committed\\nallegedly unconstitutional acts within each other’s presence, the plaintiff’s claim against that\\ndefendant may survive summary judgment. See Burley I, 729 F.3d at 622 (holding that because\\nevidence identified one defendant as a member of the team conducting the raid and the other\\nnamed defendants “worked as a team at all times relevant to this case, a jury could reasonably\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 13\\n\\n\\ninfer that [they] (1) were personally involved in the alleged use of excessive force or (2) failed to\\nintervene to prevent it”). Such a conclusion does not, as Defendants claim, “gut[] qualified\\nimmunity because it allows any plaintiff to proceed past summary judgment in the complete\\nabsence of any evidence that a particular defendant committed a specific constitutional\\nviolation.” Def. Br. at 18. First, it applies only to a limited set of plaintiffs: those who can\\nidentify the small team of officers who potentially used excessive force against the plaintiff in\\neach other’s presence. Second, it does require evidence that each particular defendant committed\\na specific constitutional violation. It acknowledges, however, that specific constitutional\\nviolations can be committed not only by an officer personally applying excessive force, but also\\nby an officer witnessing excessive force and neglecting his duty to intervene.\\n\\n Defendants argue that the key fact driving the denials of summary judgment to\\ndefendants in Binay and Burley was the officers’ intentional acts to conceal their identities so\\nthat their victims could not identify them as the specific violators of their rights. We reject this\\ninterpretation of our precedent. The key question in Burley and Binay, as in all cases on\\nsummary judgment, was whether the plaintiff had put forth evidence such that a reasonable jury\\ncould find each defendant liable. Although these cases express concern about the fact that the\\ndefendants intentionally obscured their faces, that factor is not dispositive in their analyses. See,\\ne.g., Binay, 601 F.3d at 651 (“Furthermore, the fact that Defendants wore masks during the raid\\nmade it exceedingly difficult for Plaintiffs to identify with precision which officers engaged in\\nwhich conduct.”) (emphasis added). In Burley I, the federal officers’ intentional concealment of\\ntheir identities was an aggravating factor that reinforced the court’s determination that the\\nplaintiffs’ claim should survive summary judgment, not an element necessary to reach that\\nconclusion. In that case we noted only after declaring that there existed a genuine issue of\\nmaterial fact as to the officers’ individual involvement that “[a]dditionally, we are not inclined to\\nshield the federal defendants from liability as a reward for their unethical refusal to identify\\nthemselves by name and badge number.” Burley I, 729 F.3d at 622; see also Greer v. City of\\nHighland Park, 884 F.3d 310 (6th Cir. 2018) (affirming the denial of judgment on the pleadings\\nwhere the defendants had worn ski masks while searching the plaintiffs’ home).\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 14\\n\\n\\n The Burley and Binay courts were not presented with a situation in which the plaintiff\\nwas unable to distinguish between the officers because of actions the officers took that obscured\\nthe victim’s vision that may not have been specifically intended to hide the officers’ identities. 3\\nWe reject the invitation to overread and extrapolate those cases’ comments to create a universal\\nintent-to-conceal requirement. Furthermore, in Pershell, arguably the case most similar to\\nFazica’s, the plaintiff did not allege that the defendants had intended to conceal who struck the\\nblow against his back as he lay on his stomach without his glasses. Pershell, 430 F. App’x at\\n413. Yet we still affirmed the district court’s denial of summary judgment on the individual\\nliability question. Id. at 416.\\n\\n Defendants argue that the only reason that the court might deny qualified immunity in a\\ncase in which the plaintiff is not able conclusively to identify which officer committed which\\npotentially unconstitutional act is “to avoid rewarding defendants who intentionally conceal their\\nidentities.” Def. Br. at 11. Certainly, disincentivizing officers from obscuring their identities so\\nthat they may use excessive force without consequences is a valid concern. See Burley I,\\n729 F.3d at 622. However, it is not the only concern. Plaintiffs who are unable to pinpoint\\nprecisely which named defendant did what, even where the defendants did not intentionally\\nconceal their identities, still have an interest in the vindication of their constitutional rights.\\nSection 1983 claims do not only incentivize officers’ good behavior; they also compensate and\\nachieve justice for victims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of\\nNarcotics, 403 U.S. 388, 396 (1971) (“[W]here legal rights have been invaded, and a federal\\nstatute provides for a general right to sue for such invasion, federal courts may use any available\\nremedy to make good the wrong done.” (citation omitted)). The victim can suffer the same\\nunconstitutionally excessive force whether the officer intentionally hid his face or the spit hood\\n\\n\\n 3We note that simply because the spit hood used was designed with a mesh section over the eyes to allow\\nthe wearer to see out does not mean that it could never be intentionally employed to obscure the wearer’s vision.\\nDefendants admitted that the hood could obscure the wearer’s vision “[if] the liner is pulled up too high.” R. 22-6\\n(Tucker Dep. at 18) (Page ID #578). Fazica’s claim alleges that the officers used excessive force against her that\\nwas also against the jail’s policies, acts an officer would not want to be caught committing. A jury could reasonably\\ninfer that the officers intentionally misapplied the spit hood to cover Fazica’s eyes and thereby commit these acts\\nwith impunity. We emphasize, however, that because we disagree with Defendants’ argument that an intent to\\nconceal is necessary to proceed past summary judgment on this claim, the fact that we believe that a jury could\\nindeed find such an intent present is not critical to our analysis.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 15\\n\\n\\naccidentally rode up to cover the victim’s eyes. Finally, whether or not the officers intended to\\nconceal their identities, the victim must ultimately carry her burden to prove each defendant’s\\nindividual liability by a preponderance of the evidence at trial.\\n\\n Fazica, like the plaintiffs in Binay, Burley, and Pershell, has put forth record evidence\\nsuch that a reasonable jury could conclude that each of the named Defendants either violated her\\nconstitutional rights or observed his colleagues violating her constitutional rights and failed to\\nintercede. First, Fazica’s own testimony, the Case Report, and the officers’ testimony could\\ncombine to convince a jury that specific Defendants committed specific acts that constituted\\nexcessive force. Second, the small size of the team and its interdependent work in close quarters\\ncould enable a jury to conclude that each Defendant had observed a colleague committing\\nunconstitutional acts and failed to intervene, even if he had not himself used excessive force\\nagainst Fazica.\\n\\n Fazica herself offered some distinguishing descriptions that could aid a jury in\\ndetermining which Defendant committed which acts. Fazica testified about the relative heights\\nof some of the officers. She testified that one of the men who opened the back doors of the\\npolice car was “tall. He might have been blondish brown hair, but he seemed bigger.” R. 16-3\\n(Fazica Dep. at 35) (Page ID #173). She recalled that two of the officers each had a Taser—one\\nhad a yellow one and the other had a red one, “[o]ne was long and one was short.” Id. The man\\nwho had hold of her neck and head when she was walked into the jail “was a thin guy,” “young,”\\nand “was shaking”—she testified that she believes that he is the same officer who reached into\\nher bra. Id. at 41–42, 48 (Page ID #179–80, 186). She testified that all of the officers involved\\nwere male and she was fairly certain that all were white. Id. at 36 (Page ID #174). One of the\\nofficers who she saw walking away laughing when the mask was removed from her head after\\nshe had been placed in the cell had dark hair. Id. at 50 (Page ID #188). Finally, at one point\\nduring her deposition, Fazica testified that “[i]f [she] could see [the officers] [she] would know\\n[who they were].” Id. at 60 (Page ID #198).\\n\\n The Case Report could also serve as key evidence in convincing a jury which officer was\\nresponsible for which action. It identifies Tucker as lead, Cordova as wing, Jordan as lead taser,\\nand Fletcher as foreman. The officers’ deposition testimony established the normal duties and\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 16\\n\\n\\nphysical positions in the formation that correspond to each of these unique roles on the Cell\\nExtraction Team. A jury could cross-reference Fazica’s testimony about what was done to her\\nwith the assigned tasks that correspond to each role on the Cell Extraction Team, and then with\\nthe individual Defendant that the Case Report states held each role on the day in question. The\\nCase Report also identifies the physical locations of several of the Defendants during their\\ninteraction with Fazica. For example, it states that Defendants Tucker and Cordova were\\ninvolved in initially retrieving Fazica from the police car—Tucker controlled her head and\\nCordova took control of her arms. This could aid a jury in matching officers’ identities to\\nFazica’s accounting of their actions.\\n\\n The small size of the Cell Extraction Team and its members’ interdependent work in\\nclose quarters could allow a jury reasonably to infer that all of the defendants “(1) [were]\\npersonally involved in the alleged use of excessive force or (2) failed to intervene to prevent it.”\\nBurley I, 729 F.3d at 622. First, four of the five members of the Cell Extraction Team are named\\nDefendants. The Case Report states that all Cell Extraction Team members were present\\nbeginning when they took Fazica from the police car until after the strip search concluded.\\nSecond, the Cell Extraction Team members worked closely with one another; each had an\\nassigned role that brought them in close contact with the inmate they were assigned to manage,\\nand close physical proximity with one another. Third, at least two different officers physically\\ngroped Fazica during the strip search—one touching her breasts and another touching her\\ngenitals—and more than one officer hurt her by either choking her or forcing her arms back\\nbehind her. Her testimony that multiple Defendants committed potential constitutional violations\\nwould enable a jury reasonably to conclude that each Defendant either committed the acts\\nhimself or observed his colleagues committing them. Fourth, the obviousness of some of the\\nacts Fazica recounts support the conclusion that the Defendants noticed the conduct and failed to\\nintervene to stop it. Fazica stated that her pants were physically torn off her body before her\\ngenitals and breasts were groped, and the officers testified that strip searches do not usually\\ninvolve physical contact with the inmate’s body. A jury could reasonably conclude that when an\\nofficer commits such acts, his colleagues are likely to notice.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 17\\n\\n\\n Defendants place significant weight on Fazica’s failure to name Dwayne Rodriguez, a\\nmember of the five-man team that received Fazica, as a defendant in this case, arguing that it\\ngives rise to “a real and present risk that a jury will assign blame to the wrong person.” 4 See\\nDef. Br. at 8, 17, 20. The defendants sound a false alarm. First, Fazica testified that more than\\none of the members of the Cell Extraction Team used excessive force against her. Therefore,\\neach discrete incidence of allegedly unconstitutional contact could not have been committed by\\nRodriguez. Second, a Defendant may be liable if he observes his colleague’s unconstitutional\\nact, has an opportunity to intervene, but fails to do so. See Floyd v. City of Detroit, 518 F.3d\\n398, 406 (6th Cir. 2008). Accordingly, even if Rodriguez himself had committed every act of\\nexcessive force against Fazica, a jury could still find the named Defendants liable.5\\n\\n Finally, Defendants argue that Fazica has attempted to shift the burden to each Defendant\\nto prove that he did not violate her constitutional rights, when in fact the burden is rightfully hers\\nto prove that he did. We reject this argument as well. The burden of proof at trial will still rest\\nwith Fazica. She must show that each individual Defendant either exerted excessive force on her\\nor observed his coworker do so and, given the opportunity, failed to intervene. We merely\\nconclude that the record evidence in this case could support a reasonable jury making such a\\nfinding.\\n\\n III. CONCLUSION\\n\\n For the reasons set forth above, the district court’s denial of Defendants’ motion for\\nsummary judgment is AFFIRMED.\\n\\n\\n\\n\\n 4Fazica does not address her failure to name Rodriguez as a defendant, but it was likely the result of\\nconfusion based on the Case Report. The complaint instead named Sergeant Paul Nicotri, who was mentioned in the\\nCase Report but was not in fact a member of the Cell Extraction Team in question. R. 16-4 (Case Report) (Page ID\\n#226); R. 16-8 (Nicotri Dep. at 8–9) (Page ID #270–71).\\n 5Defendants argue that the constitutional violations did not last long enough such that an officer would\\nhave had the time to realize that they were happening and intervene. Def. Br. at 21. However, viewing the facts in\\nthe light most favorable to Fazica, there is a genuine question for the jury of whether there was sufficient\\nopportunity for the officers to realize that excessive force was being used and to intervene. The jury could therefore\\nfind for Fazica on a theory that the Defendant officers violated their “duty of protection against the use of excessive\\nforce.” Turner, 119 F.3d at 429.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405225/\", \"author_raw\": \"KAREN NELSON MOORE, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"MERRITT"},"judge2":{"kind":"string","value":"GUY"},"judge3":{"kind":"string","value":"MOORE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627972/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Renee FAZICA, Plaintiff-Appellee, v. Zachary JORDAN, Josh Tucker, Carlos Cordova, and Mark Fletcher, Oakland County Sheriff's Deputies, Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0125p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n RENEE FAZICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-1457\n v. │\n │\n │\n ZACHARY JORDAN, JOSH TUCKER, CARLOS CORDOVA, │\n and MARK FLETCHER, Oakland County Sheriff’s │\n Deputies, │\n Defendants-Appellants. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:16-cv-13563—Sean F. Cox, District Judge.\n\n Argued: January 17, 2019\n\n Decided and Filed: June 10, 2019\n\n Before: MERRITT, GUY, and MOORE, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Brandon K. Buck, Peter L. Menna, OAKLAND COUNTY CORPORATION\nCOUNSEL, Pontiac, Michigan, for Appellants. Richard A. Moore, ROMANO LAW, PLLC,\nPleasant Ridge, Michigan, for Appellee. ON BRIEF: Brandon K. Buck, OAKLAND\nCOUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellants. Richard A. Moore,\nROMANO LAW, PLLC, Pleasant Ridge, Michigan, for Appellee.\n\f No. 18-1457 Fazica v. Jordan et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n KAREN NELSON MOORE, Circuit Judge. Plaintiff Renee Fazica was arrested for\ndrunk driving and taken to the Bloomfield County Police Department, and then to Oakland\nCounty Jail. Prior to her arrival at Oakland County, the jail was alerted that she was intoxicated,\nyelling, and spitting. A Cell Extraction Team of Oakland County Jail officers including Officers\nFletcher, Cordova, Tucker, and Jordan met Fazica upon her arrival. They roughly removed her\nfrom the vehicle and immediately applied a spit hood over her head that nearly entirely obscured\nher vision. The Cell Extraction Team moved her into the jail, handcuffed and in a bent-over\nposition. They handled her forcefully and threatened her with a taser. The entirely male team\ntook Fazica to a room in the jail where she was made to lie on her stomach and was strip\nsearched. Her pants were physically torn off her; one officer placed his hands on her genitals\nand another groped her breasts. Fazica was then made to walk to a cell wearing only her bra and\nthe spit hood. The spit hood had obscured her vision for much of the incident, largely preventing\nher from attributing specific acts to specific officers.\n\n Fazica sued under 42 U.S.C. § 1983, alleging that Fletcher, Cordova, Tucker, and Jordan\nused excessive force against her in violation of her Fourth and Fourteenth Amendment rights.\nDefendants moved for summary judgment on qualified-immunity grounds, arguing only that\nFazica cannot show each officer’s personal involvement in the allegedly unconstitutional acts.\nThe district court denied their motion. Because a reasonable jury could find, based on the record\nevidence, that each Defendant officer either committed or observed and failed to stop the\nallegedly unconstitutional acts, we AFFIRM the district court’s denial of summary judgment.\n\n I. BACKGROUND\n\n On October 16, 2014, a heavily intoxicated Fazica was pulled over by Bloomfield\nTownship police officers on suspicion of drunk driving. R. 16-3 (Fazica Dep. at 21–22) (Page\nID #159–60). After a blood sample was collected at the hospital, Fazica was taken to the\nBloomfield Township Police Department. Id. at 24, 28 (Page ID #162, 166). She was upset by\n\f No. 18-1457 Fazica v. Jordan et al. Page 3\n\n\nher arrest and detention and vocally expressed her discontent. An officer at the Bloomfield\npolice station informed her that if she did not lie down and go to sleep, she would be transferred\nto Oakland County Jail. Id. at 30 (Page ID #168). Oakland County Jail sometimes receives\ninmates from other jails for various reasons—it has more cells and its staff is trained to deal with\nunruly inmates. R. 16-7 (Fletcher Dep. at 11–12) (Page ID #257). A staff member from\nBloomfield called Oakland to inform the jail that Fazica would be arriving at Oakland and that\nshe was “intoxicated, yelling and spitting.” R. 16-4 (Case Report) (Page ID #226).\n\n Fazica was driven by a Bloomfield Township officer to the Oakland County Jail. R. 16-3\n(Fazica Dep. at 30–31) (Page ID #168–69). While she was still in this officer’s vehicle, he told\nher that she “better be good over here because they won’t put up with you.” Id. Upon arriving at\nthe Oakland County Jail, Fazica noticed that four male officers were standing waiting for the\nvehicle. Id. at 32 (Page ID #170). The Bloomfield Township officer exited the vehicle and\njoined the other four, who were laughing. Id. Fazica remained in the back seat, silent and facing\nforward. Id. Suddenly, one of the four Oakland County officers opened the passenger side door\nin the back and another opened the driver’s side door. Id. The Oakland County officers put her\non the ground, face down and on her stomach. Id. at 37 (Page ID #175). They placed a spit\nmask over her head and face. The mask was white and of a “soft,” “thicker” material that went\nup to the “very top of the bridge of her nose, like sort of close to her eyebrow line” so that she\n“could see just a tiny, tiny bit out of the top of [her] mask.” Id. at 38–39 (Page ID #176–77).\nThe mask is designed such that the white opaque portion covers the wearer’s mouth to protect\nofficers from being spit on. The top portion is made of a black mesh that is designed to allow the\nperson wearing it to see out. R. 16-7 (Fletcher Dep. at 16) (Page ID #258). However, “if it were\nnot pulled all the way down” or “[i]f the liner is pulled up too high,” it is possible that the person\nwearing the mask would not be able to see. R. 19-6 (Tucker Dep. at 18) (Page ID #426).\n\n One officer pulled Fazica’s arms up and back behind her; Fazica believes that he did so to\nchange her handcuffs out of those used by the Bloomfield Township police into new ones. R.\n16-3 (Fazica Dep. at 33) (Page ID #171). She told the officers that “it was hurting me really bad\nbecause it was my bad arm.” Id. at 37 (Page ID #175). She was told to shut up. Id. She heard\nthe Bloomfield Township officer get back in his car to leave. Id.\n\f No. 18-1457 Fazica v. Jordan et al. Page 4\n\n\n Fazica was then picked up and stood on her feet. The officers walked her up a stair and\nthrough a door into a hallway. Id. at 40 (Page ID #178). Once she was up the stair, the officers\nbent her over so that her face was toward the floor. Id. at 41–42 (Page ID #179–80). At that\npoint, one officer put his hands on her neck. He held her neck with four fingers of each hand on\nthe back of her neck and his thumbs in the front of her neck, with the thumbs a couple of inches\naway from each other. Id. at 44 (Page ID #182). Fazica cried and told the officers that they were\nhurting her and that she could not breathe, but the officer pushed his fingers harder on her neck.\nId. One officer stood by her side and told her repeatedly: “follow my voice or I’ll tase you.” Id.\nat 42 (Page ID #180). Fazica maintains that she could not see while the officers transported her\nthrough the building in this manner. She believes that she was taken to “a room because [she]\nthought they closed the door on it.” Id. at 45 (Page ID #183).\n\n Fazica had been wearing the jumpsuit that she had been issued at the Bloomfield\nTownship jail with the arms tied around her waist and no underpants. She also wore a bra and\nshirt. Id. at 43, 46 (Page ID #181, 184). Once the officers brought her into the room, they placed\nher face down on her stomach in a prone position on the floor, still wearing the spit hood. Id. at\n47 (Page ID #185). She was “freaking out” and asking “what are you guys doing,” but she was\nnot physically resisting. Id. at 45–46 (Page ID #183–84). One officer “pushed her face down”\nand an officer “said everyone gets stripped search [sic], just shut up.” Id. at 45 (Page ID #183).\nFazica does not recall how the officers got her shirt off. An officer ripped her pants off from\nbehind—literally tearing them apart. Id. at 46 (Page ID #184). One officer then “had [her] butt\ncheeks spread apart and there was [sic] hands like he was feeling for something.” Id. He placed\nhis hands on her genitals. Id. at 71 (Page ID #209). Another officer put his hands up the front of\nFazica’s bra and felt her nipples; Fazica felt his hands shaking as he did it. The officer who felt\nFazica’s breasts “asked what the clips were, and the gentleman behind [her] said they were the\nclips to [her] bra, don’t worry about it.” Id. at 47 (Page ID #185). The same officer who had his\nhand on her breasts called her a bitch and one officer “kind of slap punched [her] when [she] was\nin the strip search room because he was mad because [she] was hysterical.” Id. at 48, 52 (Page\nID #186, 190). The officers did not remove her bra. Id. at 47 (Page ID #185). She could not\nhear any female staff in the room and believes that no other females were present during the strip\n\f No. 18-1457 Fazica v. Jordan et al. Page 5\n\n\nsearch. Id. Fazica knew that the officers who were strip searching her and who were present in\nthe room were male because of their voices and their hands. Id. at 48 (Page ID #186).\n\n After the strip search, the officers walked her to a cell wearing nothing more than her bra\nand the spit hood. Id. at 49 (Page ID #187). They “put [her] onto the ground, they threw a pair\nof scrubs into the corner of the [cell]” and then “they ripped the mask off and the door shut.” Id.\nWhen the spit hood was removed, Fazica saw “a couple males walk away laughing.” Id. She\ntestified that it was around 10:00 P.M. by that point. Id. at 50 (Page ID #188). Her nose was\nbleeding, and she got dressed. Id. She was told that she would see a nurse, but no nurse ever\narrived. Id. Fazica was booked and photographed. Id. She was returned to her cell. Someone\nasked her over the speaker in her cell whether she had come to the jail naked. Id. at 51 (Page ID\n#189). Someone at the jail gave her clothes from Goodwill and she was released on the morning\nof October 17, 2014. Id. She was bruised from head to toe after the incident. Id. The day after\nshe was released, she went to the hospital with her husband. Id. at 55 (Page ID #193). They did\nnot give her medicine, but “gave [her] a list of what to do, soaking.” Id.\n\n The Oakland County Sheriff’s Office Case Report for the incident denotes both the\n“Report Date/Time” and “Occurrence Date/Time as October 16, 2014 at 8:57 PM. R. 16-4 (Case\nReport) (Page ID #223). However, the “Narrative” portion of the Case Report appears to have\nbeen written on November 12, 2014 at 3:46 PM. The Case Report was created by Officer\nDwayne Rodriguez. Under “People” it lists a nurse named Thorpe (with no first name), Renee\nFazica, and police officers Carlos Cordova, Dwayne Rodriguez, Josh Tucker, Mark Fletcher,\nZachary Jordan, and Paul Nicotri. The “Narrative” portion chronicles the incident and relates\nthat the Cell Extraction Team included five, rather than four, members:\n\n Booking received a call that Bloomfield Township was bringing in a new arrest,\n Inmate Fazica . . . and that she is intoxicated, yelling and spitting. . . . Sgt. Nicotri\n was notified. Supervisor Jordan was lead taser, Dep. Tucker was lead, Dep.\n Cordova and [Rodriguez] were wings and Supervisor Fletcher was four man\n [sic]. . . . Inmate Fazica was yelling as the door to the patrol car was opened.\n Dep. Tucker gained control of Inmate Fazica and with the assistance of Dep.\n Cordova and myself she was removed from the car. Dep. Tucker gained control\n of her head, Dep. Cordova and [Rodriguez] took control of her arms. A spit hood\n was then placed over her head. A pat down was then conducted for the safety and\n security of the Main Jail. Inmate Fazica was then escorted to the Annex and taken\n\f No. 18-1457 Fazica v. Jordan et al. Page 6\n\n\n into Cell 1E-4. Inmate was told to lay down on the floor and she complied.\n Inmate was then searched. The handcuffs were then removed. Inmate Fazica was\n ordered to stay on the floor until the cell door was closed. All team members then\n left the cell without further incident. Nurse Thorpe then medically cleared inmate\n Fazica of any injuries. Event entered into IMACS.1\n\nId. (Page ID #226). Although Rodriguez was a member of the Cell Extraction Team that\nreceived Fazica that day, he was not named as a Defendant in the complaint. Nicotri, a Sergeant\non duty who was not a member of the Cell Extraction Team was named as a Defendant.\n\n All named Defendants claim to have no memory whatsoever of the incident involving\nFazica. R. 16-6 (Cordova Dep. at 9–10) (Page ID #247); R. 19-4 (Jordan Dep. at 8) (Page ID\n#399); R. 16-7 (Fletcher Dep. at 10–11) (Page ID #257); R. 19-6 (Tucker Dep. at 6–7) (Page ID\n#423). They were all deposed and testified in generalities about the practices of the Cell\nExtraction Team and their work at the jail. They testified that there are female officers who are\ntrained to be members of Cell Extraction Teams, but that the gender of the inmate does not\nimpact the gender composition of the Cell Extraction Team assigned to receive the inmate. R.\n16-6 (Cordova Dep. at 14) (Page ID #248). Defendants testified that they do not use a chokehold\nduring the extraction. Id. at 18 (Page ID #249). However, they do use “head control” using\n“pressure points,” most commonly “behind the ear” and “underneath the eye.” R. 19-4 (Jordan\nDep. at 13–14) (Page ID #401). They also “bend the prisoner over so that their face is facing the\nground.” Id. at 14 (Page ID #401).\n\n Any person who comes to the Oakland County Jail after having been arrested for a felony\nis strip searched. Id. at 10 (Page ID #400). Female inmates are taken to a location in the jail\ncalled the Annex when they first arrive. R. 16-6 (Cordova Dep. at 13–14) (Page ID #248). The\nofficers testified that in a strip search, they prefer to let the inmate remove her own clothing, but\nthat if the inmate is combative, members of the Cell Extraction Team will physically remove the\ninmate’s clothing. They testified that the strip search is normally performed with the inmate\nstanding. If the inmate is combative, however, it can be performed with the inmate lying on the\nground in a prone position. R. 16-7 (Fletcher Dep. at 18) (Page ID #259). However, all\n\n 1IMACS is “the computer system that [the officers] use in order to keep track of all [their] inmates.”\nR. 16-7 (Fletcher Dep. at 21) (Page ID #260).\n\f No. 18-1457 Fazica v. Jordan et al. Page 7\n\n\nDefendant officers testified that once the inmate’s clothing has been removed, the inspection is\nmerely visual and does not involve physical probing of the inmate. R. 19-4 (Jordan Dep. at 11)\n(Page ID #400); R. 16-6 (Cordova Dep. at 16) (Page ID #248); R. 16-7 (Fletcher Dep. at 18)\n(Page ID #259). Defendant Tucker testified that if a strip search is done while an inmate is in the\nprone position on the floor, the officers will “roll them over on one side, back to their stomach,\nroll them over on the other side to make sure there’s no weapons or contraband.” R. 19-6\n(Tucker Dep. at 11–12) (Page ID #424). Some officers testified that all-male Cell Extraction\nTeams are permitted to perform strip searches on female inmates. R. 16-7 (Fletcher Dep. at 25,\n28) (Page ID #261). Only one Defendant, Jordan, testified that “[i]f we don’t have a female team\nmember available we’ll have one of our non team female deputies assist us in doing it. . . . It’s\nalways done by the same sex.” R. 19-4 (Jordan Dep. at 10–11) (Page ID #400). Defendants also\ntestified that if the strip search is performed in the Annex prior to the inmate being taken to her\ncell, she is given her clothes after the strip search and not required to walk naked to her cell. R.\n16-6 (Cordova Dep. at 16) (Page ID #248).\n\n Fazica filed her first Complaint on October 5, 2016 and an Amended Complaint on\nJanuary 30, 2017. R. 7 (First Am. Compl.) (Page ID #46). The complaints named Nicotri,\nFletcher, Cordova, Tucker, and Jordan as Defendants but did not name Rodriguez. Fazica\nbrought three claims: (1) use of excessive force in violation of the Fourth and Fourteenth\nAmendments, pursuant to 42 U.S.C. § 1983; (2) gross negligence, willful and wanton\nmisconduct, assault, battery, and intentional infliction of emotional distress; and (3) deprivation\nof liberty without due process of law, pursuant to 42 U.S.C. § 1983. Id. Defendants moved for\njudgment on the pleadings or in the alternative summary judgment on November 9, 2017, raising\nthe narrow argument that Plaintiff had failed to make specific allegations against particular\nDefendants. R. 16 (Mot. for Summ. J. at 1, 15–19) (Page ID #106, 130–35). On March 15,\n2018, the district court held a hearing on the motion. R. 36 (Mot. Hr’g Tr.) (Page ID #635). On\nMarch 21, 2018 the district court issued its order granting summary judgment with respect to\nDefendant Nicotri and denying summary judgment with respect to the other four named\nDefendants: Jordan, Tucker, Cordova, and Fletcher, “because a genuine issue of material fact\nexists as to whether each defendant was present and personally involved in any violation of\n\f No. 18-1457 Fazica v. Jordan et al. Page 8\n\n\nPlaintiff’s rights.” R. 28 (Op. and Order at 1) (Page ID #600). On April 18, 2018, Defendants\nfiled their timely notice of appeal. R. 32 (Notice of Appeal) (Page ID #629).\n\n II. DISCUSSION\n\nA. Jurisdiction\n\n We have jurisdiction in this interlocutory appeal based on the district court’s denial of\nsummary judgment under 28 U.S.C. § 1291. “[A]ny summary judgment order denying qualified\nimmunity is immediately appealable to the extent it is ‘based on a pure issue of law.’” Pollard v.\nCity of Columbus, 780 F.3d 395, 401 (6th Cir. 2015) (quoting Leary v. Livingston County,\n528 F.3d 438, 447–48 (6th Cir. 2008)). For the purposes of this appeal, Defendants concede any\nfactual disputes and adopt the version of events put forth by Fazica. Def. Br. at vi; Moldowan v.\nCity of Warren, 578 F.3d 351, 370 (6th Cir. 2009) (quoting Berryman v. Rieger, 150 F.3d 561,\n563 (6th Cir. 1998) (noting that if “the defendant disputes the plaintiff’s version of the story, the\ndefendant must nonetheless be willing to concede the most favorable view of the facts to the\nplaintiff for purposes of the appeal”)). This leaves us with a question of pure law over which we\nhave jurisdiction.\n\nB. Standard of Review\n\n We review de novo the district court’s denial of qualified immunity on summary\njudgment. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996); see also Binay v.\nBettendorf, 601 F.3d 640, 646 (6th Cir. 2010). The relevant question at summary judgment is\n“whether the evidence presents a sufficient disagreement to require submission to a jury or\nwhether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty\nLobby, Inc., 477 U.S. 242, 251–52 (1986).\n\nC. Individual Liability\n\n Normally, we review a defendant’s assertion of qualified immunity in two steps:\n(1) determining whether the defendant violated a constitutional right and (2) deciding whether\nthat right was clearly established at the time of the incident. See Shreve v. Franklin County, 743\nF.3d 126, 134 (6th Cir. 2014). Here, however, Defendants challenge the district court’s denial of\n\f No. 18-1457 Fazica v. Jordan et al. Page 9\n\n\nsummary judgment on one narrow ground, and we limit our review to that question: whether\nFazica has sufficiently offered proof of each individual Defendant’s alleged constitutional\nviolations such that a reasonable jury could find him personally involved. See Appellant Br. at 8.\nWe therefore address only the question of proof of Defendants’ individual liability for acts that\nFazica alleges amount to unconstitutional excessive force; we do not delve into whether the\nphysical contact was in fact excessive force or whether its unconstitutionality was clearly\nestablished at the time of the incident.\n\n For Fazica’s claim to survive summary judgment, she must point to sufficient record\nevidence to create a “disputed issue of material fact as to whether [each individual officer] was\npersonally involved in the conduct that violated the [plaintiff’s constitutional rights].” Binay,\n601 F.3d at 651. This is because “[e]ach defendant’s liability must be assessed individually\nbased on his own actions.” Id. at 650. “As a general rule, mere presence at the scene of a\n[constitutional violation], without a showing of direct responsibility for the action, will not\nsubject an officer to liability.” Ghandi v. Police Dep’t of Detroit, 747 F.2d 338, 352 (6th Cir.\n1984).\n\n Having personal involvement in or direct responsibility for the violation of Plaintiff’s\nconstitutional rights does not, however, necessarily mean that each Defendant officer directly\nplaced hands on her. There are several ways that a defendant officer may violate a pretrial\ndetainee’s constitutional rights. A plaintiff who claims that a defendant used excessive force\nmust show that the officer “(1) actively participated in the use of excessive force, (2) supervised\nthe officer who used excessive force, or (3) owed the victim a duty of protection against the use\nof excessive force.” Binay, 601 F.3d at 650 (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir.\n1997)). “[A] police officer who fails to act to prevent the use of excessive force may still be held\nliable where ‘(1) the officer observed or had reason to know that excessive force would be or\nwas being used, and (2) the officer had both the opportunity and the means to prevent the harm\nfrom occurring.’” Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008) (quoting Turner,\n119 F.3d at 429).\n\n Defendants argue that because Fazica cannot clearly attribute particular uses of force to\nparticular Defendants, she cannot prove that any particular Defendant’s conduct violated her\n\f No. 18-1457 Fazica v. Jordan et al. Page 10\n\n\nconstitutional rights. Def. Br. at 19–20. For example, they argue that she cannot prove whether\nit was Defendant Officer Fletcher, Cordova, Tucker, or Jordan who was the one to twist her arm\nbehind her back, rip her pants off, touch her genitals, etc., and that therefore she must lose at\nsummary judgment. We reject Defendants’ argument and conclude that a reasonable jury could\nfind that each of the named Defendants violated Fazica’s clearly established constitutional rights\neither by directly using excessive force against her or by observing others doing so and failing to\nact.\n\n Several of our cases address defendants’ assertions of qualified immunity in instances\nwhere the plaintiffs had difficulty identifying the perpetrator of unconstitutional acts. In Binay v.\nBettendorf, five or six masked officers executed a search warrant on the plaintiffs’ home.\n601 F.3d at 643–44. The plaintiffs claimed that the officers used excessive force in executing the\nwarrant by handcuffing them and holding them at gunpoint while interrogating them. Id. at 644.\nDefendant Officer Bettendorf argued that he should be granted summary judgment because “he\nhad no personal involvement in the alleged use of excessive force beyond mere presence at the\nscene.” 601 F.3d at 651. However, because there was evidence that he “was in the room with\nPlaintiffs during the interrogation and at the time Plaintiffs were handcuffed” and he testified that\nhe had “carr[ied] a pistol during the raid” we concluded that there was “a question of fact as to\nwhether he was one of the officers pointing a gun at or securing Plaintiffs during some part of the\nraid.” Id. (emphasis added). After cataloging the evidence that linked this defendant to the\nconstitutionally violative conduct, we noted: “Furthermore, the fact that Defendants wore masks\nduring the raid made it exceedingly difficult for Plaintiffs to identify with precision which\nofficers engaged in which conduct.” Id. We affirmed the district court’s determination that the\nplaintiffs had marshalled enough evidence to preclude summary judgment on Officer\nBettendorf’s individual involvement.\n\n In Burley v. Gagacki (“Burley I”), 729 F.3d 610 (6th Cir. 2013), the plaintiffs alleged that\nstate, local, and federal defendants were members of a group of officers that used excessive force\nwhen executing a search warrant of the plaintiffs’ home. Id. at 613. The officers who conducted\nthe raid wore masks and refused to reveal their names. Id. at 614. The federal defendants stalled\nduring discovery and waited until the limitations period had run before asserting “that they did\n\f No. 18-1457 Fazica v. Jordan et al. Page 11\n\n\nnot participate in the raid of plaintiffs’ home but were instead executing a search warrant”\nnearby. Id. at 615. The district court granted summary judgment to the state and local\ndefendants who the record showed “were present at the scene” but “were not part of the entry\nteam and their role was limited to perimeter security.” Id. at 619–20. The case against the\nfederal officers went to trial. One plaintiff testified that she recognized the voice of one of the\nfederal officers as belonging to an officer who had raided her home. Id. at 616–17. After the\nclose of the plaintiffs’ case the district court granted judgment as a matter of law to the federal\ndefendants. Id. at 617. We affirmed the district court’s grant of summary judgment to the state\nand local defendants “[b]ecause no evidence place[d] the state and local defendants inside\nplaintiffs’ home at the appropriate time to witness or respond to any unconstitutional conduct\nthat may have occurred.” Id. at 620. We reversed the district court’s grant of summary\njudgment to the federal defendants, however, concluding that enough evidence existed such that\na jury should have been allowed to decide whether the federal defendants were personally\ninvolved in the raid. Id. at 622. We remarked that where a jury could find that one named\ndefendant “was part of the entry team” that used excessive force based on the plaintiff’s\nrecognizing his voice from the incident, and that defendant “and the other federal defendants\nworked as a team at all times relevant to this case, a jury could reasonably infer that the other\nfederal defendants also (1) were personally involved in the alleged use of excessive force or\n(2) failed to intervene to prevent it.” Id. The state and local defendants’ “mere presence at the\nscene” was insufficient for the plaintiffs’ claim against them to survive summary judgment, but\nthe federal defendants’ possible participation in a small group that engaged with the victim in an\narguably unconstitutional manner sufficed.2 See id. at 620 (quoting Ghandi, 747 F.2d at 352).\n\n In Pershell v. Cook, we again affirmed the district court’s denial of summary judgment\non grounds of qualified immunity even though plaintiff was unable decisively to identify which\nmember of a small group of defendants had struck him. 430 F. App’x 410, 413 (6th Cir. 2011).\n\n 2\n Burley I was an appeal from a district court’s post-proof judgment as a matter of law and Burley II was an\nappeal from the trial jury’s verdict. Burley v. Gagacki (Burley II), 834 F.3d 606, 614 (6th Cir. 2016) (“Here,\nplaintiffs’ complaint advanced beyond [the motion to dismiss] stage, through discovery and summary judgment, and\nto trial.”). Fazica is merely arguing that she should be able to present her claims to a jury in the first place.\nProcedurally, Fazica’s claim is at a stage beyond which the Burley plaintiffs had already long passed when the\nBurley appellate decisions were issued.\n\f No. 18-1457 Fazica v. Jordan et al. Page 12\n\n\nDuring the relevant incident, Pershell had been knocked to his stomach on the floor with his\nglasses removed, unable to see which of the five officers present struck him as he lay there. Id.\nHe had some sense of where the various officers had been located prior to the removal of his\nglasses. Id. at 416 (“Although Pershell was unable to see the officers standing above and behind\nhim at the precise moment of the blows to his body, he has provided significant information\nabout the location and conduct of the officers based on his own sensory observations.”). Pershell\ndid not identify three of the five the officers by name—his deposition testimony referred to them\nonly as “Troopers ‘A’, ‘B’, and ‘C’.” Id. at 412. The defendants’ depositions provided\nindefinite, sometimes conflicting accounts of their locations and roles in the use of force against\nhim. Id. at 413–16. We concluded that “[t]hese sources will provide the jury with sufficient\ninformation to determine the liability of each individual defendant for the alleged constitutional\nviolation.” Id. at 416. In doing so, we contrasted Pershell’s case with “those in which the\nplaintiff lacked sufficient information to name responsible defendants or to offer an informed\naccount of the facts,” in which granting summary judgment to the defendants would be\nappropriate. Id. (citing Totman v. Louisville Jefferson Cty. Metro Gov’t, 391 F. App’x 454, 464–\n65 (6th Cir. 2010) (affirming grant of summary judgment where plaintiff could not identify\nseveral unknown officers who could have been responsible for the beating in the booking area\nand where the named defendant had not been present for the beating in the cell); Combs v.\nWilkinson, 315 F.3d 548, 557–58 (6th Cir. 2002) (affirming grant of summary judgment on\nplaintiffs’ claims against unidentified and totally unknown officers); Thornton v. Spooner, 872\nF.2d 1029, 1989 WL 34026, at *2 (6th Cir. 1989) (unpublished table opinion) (affirming grant of\nsummary judgment where plaintiff’s testimony either exculpated the named defendants or was\nentirely speculative and the plaintiff did not allege a failure to intervene).\n\n Binay, Burley, and Pershell therefore stand for the proposition that where a plaintiff who\nwas unable to identify clearly which officers committed specific acts during the incident\nproduces evidence that places an individual defendant in a small group of officers that committed\nallegedly unconstitutional acts within each other’s presence, the plaintiff’s claim against that\ndefendant may survive summary judgment. See Burley I, 729 F.3d at 622 (holding that because\nevidence identified one defendant as a member of the team conducting the raid and the other\nnamed defendants “worked as a team at all times relevant to this case, a jury could reasonably\n\f No. 18-1457 Fazica v. Jordan et al. Page 13\n\n\ninfer that [they] (1) were personally involved in the alleged use of excessive force or (2) failed to\nintervene to prevent it”). Such a conclusion does not, as Defendants claim, “gut[] qualified\nimmunity because it allows any plaintiff to proceed past summary judgment in the complete\nabsence of any evidence that a particular defendant committed a specific constitutional\nviolation.” Def. Br. at 18. First, it applies only to a limited set of plaintiffs: those who can\nidentify the small team of officers who potentially used excessive force against the plaintiff in\neach other’s presence. Second, it does require evidence that each particular defendant committed\na specific constitutional violation. It acknowledges, however, that specific constitutional\nviolations can be committed not only by an officer personally applying excessive force, but also\nby an officer witnessing excessive force and neglecting his duty to intervene.\n\n Defendants argue that the key fact driving the denials of summary judgment to\ndefendants in Binay and Burley was the officers’ intentional acts to conceal their identities so\nthat their victims could not identify them as the specific violators of their rights. We reject this\ninterpretation of our precedent. The key question in Burley and Binay, as in all cases on\nsummary judgment, was whether the plaintiff had put forth evidence such that a reasonable jury\ncould find each defendant liable. Although these cases express concern about the fact that the\ndefendants intentionally obscured their faces, that factor is not dispositive in their analyses. See,\ne.g., Binay, 601 F.3d at 651 (“Furthermore, the fact that Defendants wore masks during the raid\nmade it exceedingly difficult for Plaintiffs to identify with precision which officers engaged in\nwhich conduct.”) (emphasis added). In Burley I, the federal officers’ intentional concealment of\ntheir identities was an aggravating factor that reinforced the court’s determination that the\nplaintiffs’ claim should survive summary judgment, not an element necessary to reach that\nconclusion. In that case we noted only after declaring that there existed a genuine issue of\nmaterial fact as to the officers’ individual involvement that “[a]dditionally, we are not inclined to\nshield the federal defendants from liability as a reward for their unethical refusal to identify\nthemselves by name and badge number.” Burley I, 729 F.3d at 622; see also Greer v. City of\nHighland Park, 884 F.3d 310 (6th Cir. 2018) (affirming the denial of judgment on the pleadings\nwhere the defendants had worn ski masks while searching the plaintiffs’ home).\n\f No. 18-1457 Fazica v. Jordan et al. Page 14\n\n\n The Burley and Binay courts were not presented with a situation in which the plaintiff\nwas unable to distinguish between the officers because of actions the officers took that obscured\nthe victim’s vision that may not have been specifically intended to hide the officers’ identities. 3\nWe reject the invitation to overread and extrapolate those cases’ comments to create a universal\nintent-to-conceal requirement. Furthermore, in Pershell, arguably the case most similar to\nFazica’s, the plaintiff did not allege that the defendants had intended to conceal who struck the\nblow against his back as he lay on his stomach without his glasses. Pershell, 430 F. App’x at\n413. Yet we still affirmed the district court’s denial of summary judgment on the individual\nliability question. Id. at 416.\n\n Defendants argue that the only reason that the court might deny qualified immunity in a\ncase in which the plaintiff is not able conclusively to identify which officer committed which\npotentially unconstitutional act is “to avoid rewarding defendants who intentionally conceal their\nidentities.” Def. Br. at 11. Certainly, disincentivizing officers from obscuring their identities so\nthat they may use excessive force without consequences is a valid concern. See Burley I,\n729 F.3d at 622. However, it is not the only concern. Plaintiffs who are unable to pinpoint\nprecisely which named defendant did what, even where the defendants did not intentionally\nconceal their identities, still have an interest in the vindication of their constitutional rights.\nSection 1983 claims do not only incentivize officers’ good behavior; they also compensate and\nachieve justice for victims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of\nNarcotics, 403 U.S. 388, 396 (1971) (“[W]here legal rights have been invaded, and a federal\nstatute provides for a general right to sue for such invasion, federal courts may use any available\nremedy to make good the wrong done.” (citation omitted)). The victim can suffer the same\nunconstitutionally excessive force whether the officer intentionally hid his face or the spit hood\n\n\n 3We note that simply because the spit hood used was designed with a mesh section over the eyes to allow\nthe wearer to see out does not mean that it could never be intentionally employed to obscure the wearer’s vision.\nDefendants admitted that the hood could obscure the wearer’s vision “[if] the liner is pulled up too high.” R. 22-6\n(Tucker Dep. at 18) (Page ID #578). Fazica’s claim alleges that the officers used excessive force against her that\nwas also against the jail’s policies, acts an officer would not want to be caught committing. A jury could reasonably\ninfer that the officers intentionally misapplied the spit hood to cover Fazica’s eyes and thereby commit these acts\nwith impunity. We emphasize, however, that because we disagree with Defendants’ argument that an intent to\nconceal is necessary to proceed past summary judgment on this claim, the fact that we believe that a jury could\nindeed find such an intent present is not critical to our analysis.\n\f No. 18-1457 Fazica v. Jordan et al. Page 15\n\n\naccidentally rode up to cover the victim’s eyes. Finally, whether or not the officers intended to\nconceal their identities, the victim must ultimately carry her burden to prove each defendant’s\nindividual liability by a preponderance of the evidence at trial.\n\n Fazica, like the plaintiffs in Binay, Burley, and Pershell, has put forth record evidence\nsuch that a reasonable jury could conclude that each of the named Defendants either violated her\nconstitutional rights or observed his colleagues violating her constitutional rights and failed to\nintercede. First, Fazica’s own testimony, the Case Report, and the officers’ testimony could\ncombine to convince a jury that specific Defendants committed specific acts that constituted\nexcessive force. Second, the small size of the team and its interdependent work in close quarters\ncould enable a jury to conclude that each Defendant had observed a colleague committing\nunconstitutional acts and failed to intervene, even if he had not himself used excessive force\nagainst Fazica.\n\n Fazica herself offered some distinguishing descriptions that could aid a jury in\ndetermining which Defendant committed which acts. Fazica testified about the relative heights\nof some of the officers. She testified that one of the men who opened the back doors of the\npolice car was “tall. He might have been blondish brown hair, but he seemed bigger.” R. 16-3\n(Fazica Dep. at 35) (Page ID #173). She recalled that two of the officers each had a Taser—one\nhad a yellow one and the other had a red one, “[o]ne was long and one was short.” Id. The man\nwho had hold of her neck and head when she was walked into the jail “was a thin guy,” “young,”\nand “was shaking”—she testified that she believes that he is the same officer who reached into\nher bra. Id. at 41–42, 48 (Page ID #179–80, 186). She testified that all of the officers involved\nwere male and she was fairly certain that all were white. Id. at 36 (Page ID #174). One of the\nofficers who she saw walking away laughing when the mask was removed from her head after\nshe had been placed in the cell had dark hair. Id. at 50 (Page ID #188). Finally, at one point\nduring her deposition, Fazica testified that “[i]f [she] could see [the officers] [she] would know\n[who they were].” Id. at 60 (Page ID #198).\n\n The Case Report could also serve as key evidence in convincing a jury which officer was\nresponsible for which action. It identifies Tucker as lead, Cordova as wing, Jordan as lead taser,\nand Fletcher as foreman. The officers’ deposition testimony established the normal duties and\n\f No. 18-1457 Fazica v. Jordan et al. Page 16\n\n\nphysical positions in the formation that correspond to each of these unique roles on the Cell\nExtraction Team. A jury could cross-reference Fazica’s testimony about what was done to her\nwith the assigned tasks that correspond to each role on the Cell Extraction Team, and then with\nthe individual Defendant that the Case Report states held each role on the day in question. The\nCase Report also identifies the physical locations of several of the Defendants during their\ninteraction with Fazica. For example, it states that Defendants Tucker and Cordova were\ninvolved in initially retrieving Fazica from the police car—Tucker controlled her head and\nCordova took control of her arms. This could aid a jury in matching officers’ identities to\nFazica’s accounting of their actions.\n\n The small size of the Cell Extraction Team and its members’ interdependent work in\nclose quarters could allow a jury reasonably to infer that all of the defendants “(1) [were]\npersonally involved in the alleged use of excessive force or (2) failed to intervene to prevent it.”\nBurley I, 729 F.3d at 622. First, four of the five members of the Cell Extraction Team are named\nDefendants. The Case Report states that all Cell Extraction Team members were present\nbeginning when they took Fazica from the police car until after the strip search concluded.\nSecond, the Cell Extraction Team members worked closely with one another; each had an\nassigned role that brought them in close contact with the inmate they were assigned to manage,\nand close physical proximity with one another. Third, at least two different officers physically\ngroped Fazica during the strip search—one touching her breasts and another touching her\ngenitals—and more than one officer hurt her by either choking her or forcing her arms back\nbehind her. Her testimony that multiple Defendants committed potential constitutional violations\nwould enable a jury reasonably to conclude that each Defendant either committed the acts\nhimself or observed his colleagues committing them. Fourth, the obviousness of some of the\nacts Fazica recounts support the conclusion that the Defendants noticed the conduct and failed to\nintervene to stop it. Fazica stated that her pants were physically torn off her body before her\ngenitals and breasts were groped, and the officers testified that strip searches do not usually\ninvolve physical contact with the inmate’s body. A jury could reasonably conclude that when an\nofficer commits such acts, his colleagues are likely to notice.\n\f No. 18-1457 Fazica v. Jordan et al. Page 17\n\n\n Defendants place significant weight on Fazica’s failure to name Dwayne Rodriguez, a\nmember of the five-man team that received Fazica, as a defendant in this case, arguing that it\ngives rise to “a real and present risk that a jury will assign blame to the wrong person.” 4 See\nDef. Br. at 8, 17, 20. The defendants sound a false alarm. First, Fazica testified that more than\none of the members of the Cell Extraction Team used excessive force against her. Therefore,\neach discrete incidence of allegedly unconstitutional contact could not have been committed by\nRodriguez. Second, a Defendant may be liable if he observes his colleague’s unconstitutional\nact, has an opportunity to intervene, but fails to do so. See Floyd v. City of Detroit, 518 F.3d\n398, 406 (6th Cir. 2008). Accordingly, even if Rodriguez himself had committed every act of\nexcessive force against Fazica, a jury could still find the named Defendants liable.5\n\n Finally, Defendants argue that Fazica has attempted to shift the burden to each Defendant\nto prove that he did not violate her constitutional rights, when in fact the burden is rightfully hers\nto prove that he did. We reject this argument as well. The burden of proof at trial will still rest\nwith Fazica. She must show that each individual Defendant either exerted excessive force on her\nor observed his coworker do so and, given the opportunity, failed to intervene. We merely\nconclude that the record evidence in this case could support a reasonable jury making such a\nfinding.\n\n III. CONCLUSION\n\n For the reasons set forth above, the district court’s denial of Defendants’ motion for\nsummary judgment is AFFIRMED.\n\n\n\n\n 4Fazica does not address her failure to name Rodriguez as a defendant, but it was likely the result of\nconfusion based on the Case Report. The complaint instead named Sergeant Paul Nicotri, who was mentioned in the\nCase Report but was not in fact a member of the Cell Extraction Team in question. R. 16-4 (Case Report) (Page ID\n#226); R. 16-8 (Nicotri Dep. at 8–9) (Page ID #270–71).\n 5Defendants argue that the constitutional violations did not last long enough such that an officer would\nhave had the time to realize that they were happening and intervene. Def. Br. at 21. However, viewing the facts in\nthe light most favorable to Fazica, there is a genuine question for the jury of whether there was sufficient\nopportunity for the officers to realize that excessive force was being used and to intervene. The jury could therefore\nfind for Fazica on a theory that the Defendant officers violated their “duty of protection against the use of excessive\nforce.” Turner, 119 F.3d at 429.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Renee FAZICA, Plaintiff-Appellee, v. Zachary JORDAN, Josh Tucker, Carlos Cordova, and Mark Fletcher, Oakland County Sheriff's Deputies, Defendants-Appellants.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0125p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n RENEE FAZICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 18-1457\\n v. │\\n │\\n │\\n ZACHARY JORDAN, JOSH TUCKER, CARLOS CORDOVA, │\\n and MARK FLETCHER, Oakland County Sheriff’s │\\n Deputies, │\\n Defendants-Appellants. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:16-cv-13563—Sean F. Cox, District Judge.\\n\\n Argued: January 17, 2019\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: MERRITT, GUY, and MOORE, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Brandon K. Buck, Peter L. Menna, OAKLAND COUNTY CORPORATION\\nCOUNSEL, Pontiac, Michigan, for Appellants. Richard A. Moore, ROMANO LAW, PLLC,\\nPleasant Ridge, Michigan, for Appellee. ON BRIEF: Brandon K. Buck, OAKLAND\\nCOUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellants. Richard A. Moore,\\nROMANO LAW, PLLC, Pleasant Ridge, Michigan, for Appellee.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n KAREN NELSON MOORE, Circuit Judge. Plaintiff Renee Fazica was arrested for\\ndrunk driving and taken to the Bloomfield County Police Department, and then to Oakland\\nCounty Jail. Prior to her arrival at Oakland County, the jail was alerted that she was intoxicated,\\nyelling, and spitting. A Cell Extraction Team of Oakland County Jail officers including Officers\\nFletcher, Cordova, Tucker, and Jordan met Fazica upon her arrival. They roughly removed her\\nfrom the vehicle and immediately applied a spit hood over her head that nearly entirely obscured\\nher vision. The Cell Extraction Team moved her into the jail, handcuffed and in a bent-over\\nposition. They handled her forcefully and threatened her with a taser. The entirely male team\\ntook Fazica to a room in the jail where she was made to lie on her stomach and was strip\\nsearched. Her pants were physically torn off her; one officer placed his hands on her genitals\\nand another groped her breasts. Fazica was then made to walk to a cell wearing only her bra and\\nthe spit hood. The spit hood had obscured her vision for much of the incident, largely preventing\\nher from attributing specific acts to specific officers.\\n\\n Fazica sued under 42 U.S.C. § 1983, alleging that Fletcher, Cordova, Tucker, and Jordan\\nused excessive force against her in violation of her Fourth and Fourteenth Amendment rights.\\nDefendants moved for summary judgment on qualified-immunity grounds, arguing only that\\nFazica cannot show each officer’s personal involvement in the allegedly unconstitutional acts.\\nThe district court denied their motion. Because a reasonable jury could find, based on the record\\nevidence, that each Defendant officer either committed or observed and failed to stop the\\nallegedly unconstitutional acts, we AFFIRM the district court’s denial of summary judgment.\\n\\n I. BACKGROUND\\n\\n On October 16, 2014, a heavily intoxicated Fazica was pulled over by Bloomfield\\nTownship police officers on suspicion of drunk driving. R. 16-3 (Fazica Dep. at 21–22) (Page\\nID #159–60). After a blood sample was collected at the hospital, Fazica was taken to the\\nBloomfield Township Police Department. Id. at 24, 28 (Page ID #162, 166). She was upset by\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 3\\n\\n\\nher arrest and detention and vocally expressed her discontent. An officer at the Bloomfield\\npolice station informed her that if she did not lie down and go to sleep, she would be transferred\\nto Oakland County Jail. Id. at 30 (Page ID #168). Oakland County Jail sometimes receives\\ninmates from other jails for various reasons—it has more cells and its staff is trained to deal with\\nunruly inmates. R. 16-7 (Fletcher Dep. at 11–12) (Page ID #257). A staff member from\\nBloomfield called Oakland to inform the jail that Fazica would be arriving at Oakland and that\\nshe was “intoxicated, yelling and spitting.” R. 16-4 (Case Report) (Page ID #226).\\n\\n Fazica was driven by a Bloomfield Township officer to the Oakland County Jail. R. 16-3\\n(Fazica Dep. at 30–31) (Page ID #168–69). While she was still in this officer’s vehicle, he told\\nher that she “better be good over here because they won’t put up with you.” Id. Upon arriving at\\nthe Oakland County Jail, Fazica noticed that four male officers were standing waiting for the\\nvehicle. Id. at 32 (Page ID #170). The Bloomfield Township officer exited the vehicle and\\njoined the other four, who were laughing. Id. Fazica remained in the back seat, silent and facing\\nforward. Id. Suddenly, one of the four Oakland County officers opened the passenger side door\\nin the back and another opened the driver’s side door. Id. The Oakland County officers put her\\non the ground, face down and on her stomach. Id. at 37 (Page ID #175). They placed a spit\\nmask over her head and face. The mask was white and of a “soft,” “thicker” material that went\\nup to the “very top of the bridge of her nose, like sort of close to her eyebrow line” so that she\\n“could see just a tiny, tiny bit out of the top of [her] mask.” Id. at 38–39 (Page ID #176–77).\\nThe mask is designed such that the white opaque portion covers the wearer’s mouth to protect\\nofficers from being spit on. The top portion is made of a black mesh that is designed to allow the\\nperson wearing it to see out. R. 16-7 (Fletcher Dep. at 16) (Page ID #258). However, “if it were\\nnot pulled all the way down” or “[i]f the liner is pulled up too high,” it is possible that the person\\nwearing the mask would not be able to see. R. 19-6 (Tucker Dep. at 18) (Page ID #426).\\n\\n One officer pulled Fazica’s arms up and back behind her; Fazica believes that he did so to\\nchange her handcuffs out of those used by the Bloomfield Township police into new ones. R.\\n16-3 (Fazica Dep. at 33) (Page ID #171). She told the officers that “it was hurting me really bad\\nbecause it was my bad arm.” Id. at 37 (Page ID #175). She was told to shut up. Id. She heard\\nthe Bloomfield Township officer get back in his car to leave. Id.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 4\\n\\n\\n Fazica was then picked up and stood on her feet. The officers walked her up a stair and\\nthrough a door into a hallway. Id. at 40 (Page ID #178). Once she was up the stair, the officers\\nbent her over so that her face was toward the floor. Id. at 41–42 (Page ID #179–80). At that\\npoint, one officer put his hands on her neck. He held her neck with four fingers of each hand on\\nthe back of her neck and his thumbs in the front of her neck, with the thumbs a couple of inches\\naway from each other. Id. at 44 (Page ID #182). Fazica cried and told the officers that they were\\nhurting her and that she could not breathe, but the officer pushed his fingers harder on her neck.\\nId. One officer stood by her side and told her repeatedly: “follow my voice or I’ll tase you.” Id.\\nat 42 (Page ID #180). Fazica maintains that she could not see while the officers transported her\\nthrough the building in this manner. She believes that she was taken to “a room because [she]\\nthought they closed the door on it.” Id. at 45 (Page ID #183).\\n\\n Fazica had been wearing the jumpsuit that she had been issued at the Bloomfield\\nTownship jail with the arms tied around her waist and no underpants. She also wore a bra and\\nshirt. Id. at 43, 46 (Page ID #181, 184). Once the officers brought her into the room, they placed\\nher face down on her stomach in a prone position on the floor, still wearing the spit hood. Id. at\\n47 (Page ID #185). She was “freaking out” and asking “what are you guys doing,” but she was\\nnot physically resisting. Id. at 45–46 (Page ID #183–84). One officer “pushed her face down”\\nand an officer “said everyone gets stripped search [sic], just shut up.” Id. at 45 (Page ID #183).\\nFazica does not recall how the officers got her shirt off. An officer ripped her pants off from\\nbehind—literally tearing them apart. Id. at 46 (Page ID #184). One officer then “had [her] butt\\ncheeks spread apart and there was [sic] hands like he was feeling for something.” Id. He placed\\nhis hands on her genitals. Id. at 71 (Page ID #209). Another officer put his hands up the front of\\nFazica’s bra and felt her nipples; Fazica felt his hands shaking as he did it. The officer who felt\\nFazica’s breasts “asked what the clips were, and the gentleman behind [her] said they were the\\nclips to [her] bra, don’t worry about it.” Id. at 47 (Page ID #185). The same officer who had his\\nhand on her breasts called her a bitch and one officer “kind of slap punched [her] when [she] was\\nin the strip search room because he was mad because [she] was hysterical.” Id. at 48, 52 (Page\\nID #186, 190). The officers did not remove her bra. Id. at 47 (Page ID #185). She could not\\nhear any female staff in the room and believes that no other females were present during the strip\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 5\\n\\n\\nsearch. Id. Fazica knew that the officers who were strip searching her and who were present in\\nthe room were male because of their voices and their hands. Id. at 48 (Page ID #186).\\n\\n After the strip search, the officers walked her to a cell wearing nothing more than her bra\\nand the spit hood. Id. at 49 (Page ID #187). They “put [her] onto the ground, they threw a pair\\nof scrubs into the corner of the [cell]” and then “they ripped the mask off and the door shut.” Id.\\nWhen the spit hood was removed, Fazica saw “a couple males walk away laughing.” Id. She\\ntestified that it was around 10:00 P.M. by that point. Id. at 50 (Page ID #188). Her nose was\\nbleeding, and she got dressed. Id. She was told that she would see a nurse, but no nurse ever\\narrived. Id. Fazica was booked and photographed. Id. She was returned to her cell. Someone\\nasked her over the speaker in her cell whether she had come to the jail naked. Id. at 51 (Page ID\\n#189). Someone at the jail gave her clothes from Goodwill and she was released on the morning\\nof October 17, 2014. Id. She was bruised from head to toe after the incident. Id. The day after\\nshe was released, she went to the hospital with her husband. Id. at 55 (Page ID #193). They did\\nnot give her medicine, but “gave [her] a list of what to do, soaking.” Id.\\n\\n The Oakland County Sheriff’s Office Case Report for the incident denotes both the\\n“Report Date/Time” and “Occurrence Date/Time as October 16, 2014 at 8:57 PM. R. 16-4 (Case\\nReport) (Page ID #223). However, the “Narrative” portion of the Case Report appears to have\\nbeen written on November 12, 2014 at 3:46 PM. The Case Report was created by Officer\\nDwayne Rodriguez. Under “People” it lists a nurse named Thorpe (with no first name), Renee\\nFazica, and police officers Carlos Cordova, Dwayne Rodriguez, Josh Tucker, Mark Fletcher,\\nZachary Jordan, and Paul Nicotri. The “Narrative” portion chronicles the incident and relates\\nthat the Cell Extraction Team included five, rather than four, members:\\n\\n Booking received a call that Bloomfield Township was bringing in a new arrest,\\n Inmate Fazica . . . and that she is intoxicated, yelling and spitting. . . . Sgt. Nicotri\\n was notified. Supervisor Jordan was lead taser, Dep. Tucker was lead, Dep.\\n Cordova and [Rodriguez] were wings and Supervisor Fletcher was four man\\n [sic]. . . . Inmate Fazica was yelling as the door to the patrol car was opened.\\n Dep. Tucker gained control of Inmate Fazica and with the assistance of Dep.\\n Cordova and myself she was removed from the car. Dep. Tucker gained control\\n of her head, Dep. Cordova and [Rodriguez] took control of her arms. A spit hood\\n was then placed over her head. A pat down was then conducted for the safety and\\n security of the Main Jail. Inmate Fazica was then escorted to the Annex and taken\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 6\\n\\n\\n into Cell 1E-4. Inmate was told to lay down on the floor and she complied.\\n Inmate was then searched. The handcuffs were then removed. Inmate Fazica was\\n ordered to stay on the floor until the cell door was closed. All team members then\\n left the cell without further incident. Nurse Thorpe then medically cleared inmate\\n Fazica of any injuries. Event entered into IMACS.1\\n\\nId. (Page ID #226). Although Rodriguez was a member of the Cell Extraction Team that\\nreceived Fazica that day, he was not named as a Defendant in the complaint. Nicotri, a Sergeant\\non duty who was not a member of the Cell Extraction Team was named as a Defendant.\\n\\n All named Defendants claim to have no memory whatsoever of the incident involving\\nFazica. R. 16-6 (Cordova Dep. at 9–10) (Page ID #247); R. 19-4 (Jordan Dep. at 8) (Page ID\\n#399); R. 16-7 (Fletcher Dep. at 10–11) (Page ID #257); R. 19-6 (Tucker Dep. at 6–7) (Page ID\\n#423). They were all deposed and testified in generalities about the practices of the Cell\\nExtraction Team and their work at the jail. They testified that there are female officers who are\\ntrained to be members of Cell Extraction Teams, but that the gender of the inmate does not\\nimpact the gender composition of the Cell Extraction Team assigned to receive the inmate. R.\\n16-6 (Cordova Dep. at 14) (Page ID #248). Defendants testified that they do not use a chokehold\\nduring the extraction. Id. at 18 (Page ID #249). However, they do use “head control” using\\n“pressure points,” most commonly “behind the ear” and “underneath the eye.” R. 19-4 (Jordan\\nDep. at 13–14) (Page ID #401). They also “bend the prisoner over so that their face is facing the\\nground.” Id. at 14 (Page ID #401).\\n\\n Any person who comes to the Oakland County Jail after having been arrested for a felony\\nis strip searched. Id. at 10 (Page ID #400). Female inmates are taken to a location in the jail\\ncalled the Annex when they first arrive. R. 16-6 (Cordova Dep. at 13–14) (Page ID #248). The\\nofficers testified that in a strip search, they prefer to let the inmate remove her own clothing, but\\nthat if the inmate is combative, members of the Cell Extraction Team will physically remove the\\ninmate’s clothing. They testified that the strip search is normally performed with the inmate\\nstanding. If the inmate is combative, however, it can be performed with the inmate lying on the\\nground in a prone position. R. 16-7 (Fletcher Dep. at 18) (Page ID #259). However, all\\n\\n 1IMACS is “the computer system that [the officers] use in order to keep track of all [their] inmates.”\\nR. 16-7 (Fletcher Dep. at 21) (Page ID #260).\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 7\\n\\n\\nDefendant officers testified that once the inmate’s clothing has been removed, the inspection is\\nmerely visual and does not involve physical probing of the inmate. R. 19-4 (Jordan Dep. at 11)\\n(Page ID #400); R. 16-6 (Cordova Dep. at 16) (Page ID #248); R. 16-7 (Fletcher Dep. at 18)\\n(Page ID #259). Defendant Tucker testified that if a strip search is done while an inmate is in the\\nprone position on the floor, the officers will “roll them over on one side, back to their stomach,\\nroll them over on the other side to make sure there’s no weapons or contraband.” R. 19-6\\n(Tucker Dep. at 11–12) (Page ID #424). Some officers testified that all-male Cell Extraction\\nTeams are permitted to perform strip searches on female inmates. R. 16-7 (Fletcher Dep. at 25,\\n28) (Page ID #261). Only one Defendant, Jordan, testified that “[i]f we don’t have a female team\\nmember available we’ll have one of our non team female deputies assist us in doing it. . . . It’s\\nalways done by the same sex.” R. 19-4 (Jordan Dep. at 10–11) (Page ID #400). Defendants also\\ntestified that if the strip search is performed in the Annex prior to the inmate being taken to her\\ncell, she is given her clothes after the strip search and not required to walk naked to her cell. R.\\n16-6 (Cordova Dep. at 16) (Page ID #248).\\n\\n Fazica filed her first Complaint on October 5, 2016 and an Amended Complaint on\\nJanuary 30, 2017. R. 7 (First Am. Compl.) (Page ID #46). The complaints named Nicotri,\\nFletcher, Cordova, Tucker, and Jordan as Defendants but did not name Rodriguez. Fazica\\nbrought three claims: (1) use of excessive force in violation of the Fourth and Fourteenth\\nAmendments, pursuant to 42 U.S.C. § 1983; (2) gross negligence, willful and wanton\\nmisconduct, assault, battery, and intentional infliction of emotional distress; and (3) deprivation\\nof liberty without due process of law, pursuant to 42 U.S.C. § 1983. Id. Defendants moved for\\njudgment on the pleadings or in the alternative summary judgment on November 9, 2017, raising\\nthe narrow argument that Plaintiff had failed to make specific allegations against particular\\nDefendants. R. 16 (Mot. for Summ. J. at 1, 15–19) (Page ID #106, 130–35). On March 15,\\n2018, the district court held a hearing on the motion. R. 36 (Mot. Hr’g Tr.) (Page ID #635). On\\nMarch 21, 2018 the district court issued its order granting summary judgment with respect to\\nDefendant Nicotri and denying summary judgment with respect to the other four named\\nDefendants: Jordan, Tucker, Cordova, and Fletcher, “because a genuine issue of material fact\\nexists as to whether each defendant was present and personally involved in any violation of\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 8\\n\\n\\nPlaintiff’s rights.” R. 28 (Op. and Order at 1) (Page ID #600). On April 18, 2018, Defendants\\nfiled their timely notice of appeal. R. 32 (Notice of Appeal) (Page ID #629).\\n\\n II. DISCUSSION\\n\\nA. Jurisdiction\\n\\n We have jurisdiction in this interlocutory appeal based on the district court’s denial of\\nsummary judgment under 28 U.S.C. § 1291. “[A]ny summary judgment order denying qualified\\nimmunity is immediately appealable to the extent it is ‘based on a pure issue of law.’” Pollard v.\\nCity of Columbus, 780 F.3d 395, 401 (6th Cir. 2015) (quoting Leary v. Livingston County,\\n528 F.3d 438, 447–48 (6th Cir. 2008)). For the purposes of this appeal, Defendants concede any\\nfactual disputes and adopt the version of events put forth by Fazica. Def. Br. at vi; Moldowan v.\\nCity of Warren, 578 F.3d 351, 370 (6th Cir. 2009) (quoting Berryman v. Rieger, 150 F.3d 561,\\n563 (6th Cir. 1998) (noting that if “the defendant disputes the plaintiff’s version of the story, the\\ndefendant must nonetheless be willing to concede the most favorable view of the facts to the\\nplaintiff for purposes of the appeal”)). This leaves us with a question of pure law over which we\\nhave jurisdiction.\\n\\nB. Standard of Review\\n\\n We review de novo the district court’s denial of qualified immunity on summary\\njudgment. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996); see also Binay v.\\nBettendorf, 601 F.3d 640, 646 (6th Cir. 2010). The relevant question at summary judgment is\\n“whether the evidence presents a sufficient disagreement to require submission to a jury or\\nwhether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty\\nLobby, Inc., 477 U.S. 242, 251–52 (1986).\\n\\nC. Individual Liability\\n\\n Normally, we review a defendant’s assertion of qualified immunity in two steps:\\n(1) determining whether the defendant violated a constitutional right and (2) deciding whether\\nthat right was clearly established at the time of the incident. See Shreve v. Franklin County, 743\\nF.3d 126, 134 (6th Cir. 2014). Here, however, Defendants challenge the district court’s denial of\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 9\\n\\n\\nsummary judgment on one narrow ground, and we limit our review to that question: whether\\nFazica has sufficiently offered proof of each individual Defendant’s alleged constitutional\\nviolations such that a reasonable jury could find him personally involved. See Appellant Br. at 8.\\nWe therefore address only the question of proof of Defendants’ individual liability for acts that\\nFazica alleges amount to unconstitutional excessive force; we do not delve into whether the\\nphysical contact was in fact excessive force or whether its unconstitutionality was clearly\\nestablished at the time of the incident.\\n\\n For Fazica’s claim to survive summary judgment, she must point to sufficient record\\nevidence to create a “disputed issue of material fact as to whether [each individual officer] was\\npersonally involved in the conduct that violated the [plaintiff’s constitutional rights].” Binay,\\n601 F.3d at 651. This is because “[e]ach defendant’s liability must be assessed individually\\nbased on his own actions.” Id. at 650. “As a general rule, mere presence at the scene of a\\n[constitutional violation], without a showing of direct responsibility for the action, will not\\nsubject an officer to liability.” Ghandi v. Police Dep’t of Detroit, 747 F.2d 338, 352 (6th Cir.\\n1984).\\n\\n Having personal involvement in or direct responsibility for the violation of Plaintiff’s\\nconstitutional rights does not, however, necessarily mean that each Defendant officer directly\\nplaced hands on her. There are several ways that a defendant officer may violate a pretrial\\ndetainee’s constitutional rights. A plaintiff who claims that a defendant used excessive force\\nmust show that the officer “(1) actively participated in the use of excessive force, (2) supervised\\nthe officer who used excessive force, or (3) owed the victim a duty of protection against the use\\nof excessive force.” Binay, 601 F.3d at 650 (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir.\\n1997)). “[A] police officer who fails to act to prevent the use of excessive force may still be held\\nliable where ‘(1) the officer observed or had reason to know that excessive force would be or\\nwas being used, and (2) the officer had both the opportunity and the means to prevent the harm\\nfrom occurring.’” Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008) (quoting Turner,\\n119 F.3d at 429).\\n\\n Defendants argue that because Fazica cannot clearly attribute particular uses of force to\\nparticular Defendants, she cannot prove that any particular Defendant’s conduct violated her\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 10\\n\\n\\nconstitutional rights. Def. Br. at 19–20. For example, they argue that she cannot prove whether\\nit was Defendant Officer Fletcher, Cordova, Tucker, or Jordan who was the one to twist her arm\\nbehind her back, rip her pants off, touch her genitals, etc., and that therefore she must lose at\\nsummary judgment. We reject Defendants’ argument and conclude that a reasonable jury could\\nfind that each of the named Defendants violated Fazica’s clearly established constitutional rights\\neither by directly using excessive force against her or by observing others doing so and failing to\\nact.\\n\\n Several of our cases address defendants’ assertions of qualified immunity in instances\\nwhere the plaintiffs had difficulty identifying the perpetrator of unconstitutional acts. In Binay v.\\nBettendorf, five or six masked officers executed a search warrant on the plaintiffs’ home.\\n601 F.3d at 643–44. The plaintiffs claimed that the officers used excessive force in executing the\\nwarrant by handcuffing them and holding them at gunpoint while interrogating them. Id. at 644.\\nDefendant Officer Bettendorf argued that he should be granted summary judgment because “he\\nhad no personal involvement in the alleged use of excessive force beyond mere presence at the\\nscene.” 601 F.3d at 651. However, because there was evidence that he “was in the room with\\nPlaintiffs during the interrogation and at the time Plaintiffs were handcuffed” and he testified that\\nhe had “carr[ied] a pistol during the raid” we concluded that there was “a question of fact as to\\nwhether he was one of the officers pointing a gun at or securing Plaintiffs during some part of the\\nraid.” Id. (emphasis added). After cataloging the evidence that linked this defendant to the\\nconstitutionally violative conduct, we noted: “Furthermore, the fact that Defendants wore masks\\nduring the raid made it exceedingly difficult for Plaintiffs to identify with precision which\\nofficers engaged in which conduct.” Id. We affirmed the district court’s determination that the\\nplaintiffs had marshalled enough evidence to preclude summary judgment on Officer\\nBettendorf’s individual involvement.\\n\\n In Burley v. Gagacki (“Burley I”), 729 F.3d 610 (6th Cir. 2013), the plaintiffs alleged that\\nstate, local, and federal defendants were members of a group of officers that used excessive force\\nwhen executing a search warrant of the plaintiffs’ home. Id. at 613. The officers who conducted\\nthe raid wore masks and refused to reveal their names. Id. at 614. The federal defendants stalled\\nduring discovery and waited until the limitations period had run before asserting “that they did\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 11\\n\\n\\nnot participate in the raid of plaintiffs’ home but were instead executing a search warrant”\\nnearby. Id. at 615. The district court granted summary judgment to the state and local\\ndefendants who the record showed “were present at the scene” but “were not part of the entry\\nteam and their role was limited to perimeter security.” Id. at 619–20. The case against the\\nfederal officers went to trial. One plaintiff testified that she recognized the voice of one of the\\nfederal officers as belonging to an officer who had raided her home. Id. at 616–17. After the\\nclose of the plaintiffs’ case the district court granted judgment as a matter of law to the federal\\ndefendants. Id. at 617. We affirmed the district court’s grant of summary judgment to the state\\nand local defendants “[b]ecause no evidence place[d] the state and local defendants inside\\nplaintiffs’ home at the appropriate time to witness or respond to any unconstitutional conduct\\nthat may have occurred.” Id. at 620. We reversed the district court’s grant of summary\\njudgment to the federal defendants, however, concluding that enough evidence existed such that\\na jury should have been allowed to decide whether the federal defendants were personally\\ninvolved in the raid. Id. at 622. We remarked that where a jury could find that one named\\ndefendant “was part of the entry team” that used excessive force based on the plaintiff’s\\nrecognizing his voice from the incident, and that defendant “and the other federal defendants\\nworked as a team at all times relevant to this case, a jury could reasonably infer that the other\\nfederal defendants also (1) were personally involved in the alleged use of excessive force or\\n(2) failed to intervene to prevent it.” Id. The state and local defendants’ “mere presence at the\\nscene” was insufficient for the plaintiffs’ claim against them to survive summary judgment, but\\nthe federal defendants’ possible participation in a small group that engaged with the victim in an\\narguably unconstitutional manner sufficed.2 See id. at 620 (quoting Ghandi, 747 F.2d at 352).\\n\\n In Pershell v. Cook, we again affirmed the district court’s denial of summary judgment\\non grounds of qualified immunity even though plaintiff was unable decisively to identify which\\nmember of a small group of defendants had struck him. 430 F. App’x 410, 413 (6th Cir. 2011).\\n\\n 2\\n Burley I was an appeal from a district court’s post-proof judgment as a matter of law and Burley II was an\\nappeal from the trial jury’s verdict. Burley v. Gagacki (Burley II), 834 F.3d 606, 614 (6th Cir. 2016) (“Here,\\nplaintiffs’ complaint advanced beyond [the motion to dismiss] stage, through discovery and summary judgment, and\\nto trial.”). Fazica is merely arguing that she should be able to present her claims to a jury in the first place.\\nProcedurally, Fazica’s claim is at a stage beyond which the Burley plaintiffs had already long passed when the\\nBurley appellate decisions were issued.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 12\\n\\n\\nDuring the relevant incident, Pershell had been knocked to his stomach on the floor with his\\nglasses removed, unable to see which of the five officers present struck him as he lay there. Id.\\nHe had some sense of where the various officers had been located prior to the removal of his\\nglasses. Id. at 416 (“Although Pershell was unable to see the officers standing above and behind\\nhim at the precise moment of the blows to his body, he has provided significant information\\nabout the location and conduct of the officers based on his own sensory observations.”). Pershell\\ndid not identify three of the five the officers by name—his deposition testimony referred to them\\nonly as “Troopers ‘A’, ‘B’, and ‘C’.” Id. at 412. The defendants’ depositions provided\\nindefinite, sometimes conflicting accounts of their locations and roles in the use of force against\\nhim. Id. at 413–16. We concluded that “[t]hese sources will provide the jury with sufficient\\ninformation to determine the liability of each individual defendant for the alleged constitutional\\nviolation.” Id. at 416. In doing so, we contrasted Pershell’s case with “those in which the\\nplaintiff lacked sufficient information to name responsible defendants or to offer an informed\\naccount of the facts,” in which granting summary judgment to the defendants would be\\nappropriate. Id. (citing Totman v. Louisville Jefferson Cty. Metro Gov’t, 391 F. App’x 454, 464–\\n65 (6th Cir. 2010) (affirming grant of summary judgment where plaintiff could not identify\\nseveral unknown officers who could have been responsible for the beating in the booking area\\nand where the named defendant had not been present for the beating in the cell); Combs v.\\nWilkinson, 315 F.3d 548, 557–58 (6th Cir. 2002) (affirming grant of summary judgment on\\nplaintiffs’ claims against unidentified and totally unknown officers); Thornton v. Spooner, 872\\nF.2d 1029, 1989 WL 34026, at *2 (6th Cir. 1989) (unpublished table opinion) (affirming grant of\\nsummary judgment where plaintiff’s testimony either exculpated the named defendants or was\\nentirely speculative and the plaintiff did not allege a failure to intervene).\\n\\n Binay, Burley, and Pershell therefore stand for the proposition that where a plaintiff who\\nwas unable to identify clearly which officers committed specific acts during the incident\\nproduces evidence that places an individual defendant in a small group of officers that committed\\nallegedly unconstitutional acts within each other’s presence, the plaintiff’s claim against that\\ndefendant may survive summary judgment. See Burley I, 729 F.3d at 622 (holding that because\\nevidence identified one defendant as a member of the team conducting the raid and the other\\nnamed defendants “worked as a team at all times relevant to this case, a jury could reasonably\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 13\\n\\n\\ninfer that [they] (1) were personally involved in the alleged use of excessive force or (2) failed to\\nintervene to prevent it”). Such a conclusion does not, as Defendants claim, “gut[] qualified\\nimmunity because it allows any plaintiff to proceed past summary judgment in the complete\\nabsence of any evidence that a particular defendant committed a specific constitutional\\nviolation.” Def. Br. at 18. First, it applies only to a limited set of plaintiffs: those who can\\nidentify the small team of officers who potentially used excessive force against the plaintiff in\\neach other’s presence. Second, it does require evidence that each particular defendant committed\\na specific constitutional violation. It acknowledges, however, that specific constitutional\\nviolations can be committed not only by an officer personally applying excessive force, but also\\nby an officer witnessing excessive force and neglecting his duty to intervene.\\n\\n Defendants argue that the key fact driving the denials of summary judgment to\\ndefendants in Binay and Burley was the officers’ intentional acts to conceal their identities so\\nthat their victims could not identify them as the specific violators of their rights. We reject this\\ninterpretation of our precedent. The key question in Burley and Binay, as in all cases on\\nsummary judgment, was whether the plaintiff had put forth evidence such that a reasonable jury\\ncould find each defendant liable. Although these cases express concern about the fact that the\\ndefendants intentionally obscured their faces, that factor is not dispositive in their analyses. See,\\ne.g., Binay, 601 F.3d at 651 (“Furthermore, the fact that Defendants wore masks during the raid\\nmade it exceedingly difficult for Plaintiffs to identify with precision which officers engaged in\\nwhich conduct.”) (emphasis added). In Burley I, the federal officers’ intentional concealment of\\ntheir identities was an aggravating factor that reinforced the court’s determination that the\\nplaintiffs’ claim should survive summary judgment, not an element necessary to reach that\\nconclusion. In that case we noted only after declaring that there existed a genuine issue of\\nmaterial fact as to the officers’ individual involvement that “[a]dditionally, we are not inclined to\\nshield the federal defendants from liability as a reward for their unethical refusal to identify\\nthemselves by name and badge number.” Burley I, 729 F.3d at 622; see also Greer v. City of\\nHighland Park, 884 F.3d 310 (6th Cir. 2018) (affirming the denial of judgment on the pleadings\\nwhere the defendants had worn ski masks while searching the plaintiffs’ home).\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 14\\n\\n\\n The Burley and Binay courts were not presented with a situation in which the plaintiff\\nwas unable to distinguish between the officers because of actions the officers took that obscured\\nthe victim’s vision that may not have been specifically intended to hide the officers’ identities. 3\\nWe reject the invitation to overread and extrapolate those cases’ comments to create a universal\\nintent-to-conceal requirement. Furthermore, in Pershell, arguably the case most similar to\\nFazica’s, the plaintiff did not allege that the defendants had intended to conceal who struck the\\nblow against his back as he lay on his stomach without his glasses. Pershell, 430 F. App’x at\\n413. Yet we still affirmed the district court’s denial of summary judgment on the individual\\nliability question. Id. at 416.\\n\\n Defendants argue that the only reason that the court might deny qualified immunity in a\\ncase in which the plaintiff is not able conclusively to identify which officer committed which\\npotentially unconstitutional act is “to avoid rewarding defendants who intentionally conceal their\\nidentities.” Def. Br. at 11. Certainly, disincentivizing officers from obscuring their identities so\\nthat they may use excessive force without consequences is a valid concern. See Burley I,\\n729 F.3d at 622. However, it is not the only concern. Plaintiffs who are unable to pinpoint\\nprecisely which named defendant did what, even where the defendants did not intentionally\\nconceal their identities, still have an interest in the vindication of their constitutional rights.\\nSection 1983 claims do not only incentivize officers’ good behavior; they also compensate and\\nachieve justice for victims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of\\nNarcotics, 403 U.S. 388, 396 (1971) (“[W]here legal rights have been invaded, and a federal\\nstatute provides for a general right to sue for such invasion, federal courts may use any available\\nremedy to make good the wrong done.” (citation omitted)). The victim can suffer the same\\nunconstitutionally excessive force whether the officer intentionally hid his face or the spit hood\\n\\n\\n 3We note that simply because the spit hood used was designed with a mesh section over the eyes to allow\\nthe wearer to see out does not mean that it could never be intentionally employed to obscure the wearer’s vision.\\nDefendants admitted that the hood could obscure the wearer’s vision “[if] the liner is pulled up too high.” R. 22-6\\n(Tucker Dep. at 18) (Page ID #578). Fazica’s claim alleges that the officers used excessive force against her that\\nwas also against the jail’s policies, acts an officer would not want to be caught committing. A jury could reasonably\\ninfer that the officers intentionally misapplied the spit hood to cover Fazica’s eyes and thereby commit these acts\\nwith impunity. We emphasize, however, that because we disagree with Defendants’ argument that an intent to\\nconceal is necessary to proceed past summary judgment on this claim, the fact that we believe that a jury could\\nindeed find such an intent present is not critical to our analysis.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 15\\n\\n\\naccidentally rode up to cover the victim’s eyes. Finally, whether or not the officers intended to\\nconceal their identities, the victim must ultimately carry her burden to prove each defendant’s\\nindividual liability by a preponderance of the evidence at trial.\\n\\n Fazica, like the plaintiffs in Binay, Burley, and Pershell, has put forth record evidence\\nsuch that a reasonable jury could conclude that each of the named Defendants either violated her\\nconstitutional rights or observed his colleagues violating her constitutional rights and failed to\\nintercede. First, Fazica’s own testimony, the Case Report, and the officers’ testimony could\\ncombine to convince a jury that specific Defendants committed specific acts that constituted\\nexcessive force. Second, the small size of the team and its interdependent work in close quarters\\ncould enable a jury to conclude that each Defendant had observed a colleague committing\\nunconstitutional acts and failed to intervene, even if he had not himself used excessive force\\nagainst Fazica.\\n\\n Fazica herself offered some distinguishing descriptions that could aid a jury in\\ndetermining which Defendant committed which acts. Fazica testified about the relative heights\\nof some of the officers. She testified that one of the men who opened the back doors of the\\npolice car was “tall. He might have been blondish brown hair, but he seemed bigger.” R. 16-3\\n(Fazica Dep. at 35) (Page ID #173). She recalled that two of the officers each had a Taser—one\\nhad a yellow one and the other had a red one, “[o]ne was long and one was short.” Id. The man\\nwho had hold of her neck and head when she was walked into the jail “was a thin guy,” “young,”\\nand “was shaking”—she testified that she believes that he is the same officer who reached into\\nher bra. Id. at 41–42, 48 (Page ID #179–80, 186). She testified that all of the officers involved\\nwere male and she was fairly certain that all were white. Id. at 36 (Page ID #174). One of the\\nofficers who she saw walking away laughing when the mask was removed from her head after\\nshe had been placed in the cell had dark hair. Id. at 50 (Page ID #188). Finally, at one point\\nduring her deposition, Fazica testified that “[i]f [she] could see [the officers] [she] would know\\n[who they were].” Id. at 60 (Page ID #198).\\n\\n The Case Report could also serve as key evidence in convincing a jury which officer was\\nresponsible for which action. It identifies Tucker as lead, Cordova as wing, Jordan as lead taser,\\nand Fletcher as foreman. The officers’ deposition testimony established the normal duties and\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 16\\n\\n\\nphysical positions in the formation that correspond to each of these unique roles on the Cell\\nExtraction Team. A jury could cross-reference Fazica’s testimony about what was done to her\\nwith the assigned tasks that correspond to each role on the Cell Extraction Team, and then with\\nthe individual Defendant that the Case Report states held each role on the day in question. The\\nCase Report also identifies the physical locations of several of the Defendants during their\\ninteraction with Fazica. For example, it states that Defendants Tucker and Cordova were\\ninvolved in initially retrieving Fazica from the police car—Tucker controlled her head and\\nCordova took control of her arms. This could aid a jury in matching officers’ identities to\\nFazica’s accounting of their actions.\\n\\n The small size of the Cell Extraction Team and its members’ interdependent work in\\nclose quarters could allow a jury reasonably to infer that all of the defendants “(1) [were]\\npersonally involved in the alleged use of excessive force or (2) failed to intervene to prevent it.”\\nBurley I, 729 F.3d at 622. First, four of the five members of the Cell Extraction Team are named\\nDefendants. The Case Report states that all Cell Extraction Team members were present\\nbeginning when they took Fazica from the police car until after the strip search concluded.\\nSecond, the Cell Extraction Team members worked closely with one another; each had an\\nassigned role that brought them in close contact with the inmate they were assigned to manage,\\nand close physical proximity with one another. Third, at least two different officers physically\\ngroped Fazica during the strip search—one touching her breasts and another touching her\\ngenitals—and more than one officer hurt her by either choking her or forcing her arms back\\nbehind her. Her testimony that multiple Defendants committed potential constitutional violations\\nwould enable a jury reasonably to conclude that each Defendant either committed the acts\\nhimself or observed his colleagues committing them. Fourth, the obviousness of some of the\\nacts Fazica recounts support the conclusion that the Defendants noticed the conduct and failed to\\nintervene to stop it. Fazica stated that her pants were physically torn off her body before her\\ngenitals and breasts were groped, and the officers testified that strip searches do not usually\\ninvolve physical contact with the inmate’s body. A jury could reasonably conclude that when an\\nofficer commits such acts, his colleagues are likely to notice.\\n\\f No. 18-1457 Fazica v. Jordan et al. Page 17\\n\\n\\n Defendants place significant weight on Fazica’s failure to name Dwayne Rodriguez, a\\nmember of the five-man team that received Fazica, as a defendant in this case, arguing that it\\ngives rise to “a real and present risk that a jury will assign blame to the wrong person.” 4 See\\nDef. Br. at 8, 17, 20. The defendants sound a false alarm. First, Fazica testified that more than\\none of the members of the Cell Extraction Team used excessive force against her. Therefore,\\neach discrete incidence of allegedly unconstitutional contact could not have been committed by\\nRodriguez. Second, a Defendant may be liable if he observes his colleague’s unconstitutional\\nact, has an opportunity to intervene, but fails to do so. See Floyd v. City of Detroit, 518 F.3d\\n398, 406 (6th Cir. 2008). Accordingly, even if Rodriguez himself had committed every act of\\nexcessive force against Fazica, a jury could still find the named Defendants liable.5\\n\\n Finally, Defendants argue that Fazica has attempted to shift the burden to each Defendant\\nto prove that he did not violate her constitutional rights, when in fact the burden is rightfully hers\\nto prove that he did. We reject this argument as well. The burden of proof at trial will still rest\\nwith Fazica. She must show that each individual Defendant either exerted excessive force on her\\nor observed his coworker do so and, given the opportunity, failed to intervene. We merely\\nconclude that the record evidence in this case could support a reasonable jury making such a\\nfinding.\\n\\n III. CONCLUSION\\n\\n For the reasons set forth above, the district court’s denial of Defendants’ motion for\\nsummary judgment is AFFIRMED.\\n\\n\\n\\n\\n 4Fazica does not address her failure to name Rodriguez as a defendant, but it was likely the result of\\nconfusion based on the Case Report. The complaint instead named Sergeant Paul Nicotri, who was mentioned in the\\nCase Report but was not in fact a member of the Cell Extraction Team in question. R. 16-4 (Case Report) (Page ID\\n#226); R. 16-8 (Nicotri Dep. at 8–9) (Page ID #270–71).\\n 5Defendants argue that the constitutional violations did not last long enough such that an officer would\\nhave had the time to realize that they were happening and intervene. Def. Br. at 21. However, viewing the facts in\\nthe light most favorable to Fazica, there is a genuine question for the jury of whether there was sufficient\\nopportunity for the officers to realize that excessive force was being used and to intervene. The jury could therefore\\nfind for Fazica on a theory that the Defendant officers violated their “duty of protection against the use of excessive\\nforce.” Turner, 119 F.3d at 429.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2493,"cells":{"id":{"kind":"number","value":4627975,"string":"4,627,975"},"name":{"kind":"string","value":"Charles Brian FOX and Megan Fox, Individually and as Parents and Next Friends of Hailey Fox; Matthew Fox; Rebecca Fox ; Sarah Fox, Plaintiffs-Appellants, v. AMAZON.COM, INC., Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Charles Fox v. Amazon.com, Inc."},"decision_date":{"kind":"string","value":"2019-06-10"},"docket_number":{"kind":"string","value":"18-5661"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"No. 3:16-cv-03013-William Lynn Campbell, Jr., District Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0123p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n CHARLES BRIAN FOX and MEGAN FOX, Individually ┐\\n and as Parents and Next Friends of HAILEY FOX; │\\n MATTHEW FOX; REBECCA FOX; SARAH FOX, │\\n Plaintiffs-Appellants, │\\n │\\n > No. 18-5661\\n v. │\\n │\\n │\\n AMAZON.COM, INC., │\\n Defendant-Appellee. │\\n │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Middle District of Tennessee at Nashville.\\n No. 3:16-cv-03013—William Lynn Campbell, Jr., District Judge.\\n\\n Argued: March 14, 2019\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge. *\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee, for\\nAppellants. Brendan Murphy, PERKINS COIE LLP, Seattle, Washington, for Appellee.\\nON BRIEF: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee,\\nMark E. Spear, Kaylin L. Hart, SPEAR, SPEAR & HAMBY, P.C., Mobile, Alabama, Donald\\nCapparella, DODSON PARKER BEHM & CAPPARELLA, P.C., Nashville, Tennessee, for\\nAppellants. Brendan Murphy, Eric D. Miller, Rachel Constantino-Wallace, PERKINS COIE\\nLLP, Seattle, Washington, Lela M. Hollabaugh, Scott Burnett Smith, BRADLEY ARANT\\nBOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee.\\n\\n *The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by\\ndesignation.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n CLAY, Circuit Judge. Plaintiffs Charles Brian and Megan Fox, individually and as\\nparents and next friends of their minor children Hailey, Matthew, Rebecca, and Sarah Fox,\\nappeal the district court’s May 30, 2018 order granting summary judgment in favor of Defendant\\nAmazon.com, Inc. Plaintiffs’ complaint alleges that Defendant (1) sold Plaintiff Megan Fox a\\ndefective or unreasonably dangerous product, in violation of the Tennessee Products Liability\\nAct of 1978, Tenn. Code Ann. § 29-28-101 et seq., (2) breached a duty to warn Plaintiff Megan\\nFox about the defective or unreasonably dangerous nature of that product, in violation of\\nTennessee tort law, and (3) caused Plaintiff Megan Fox confusion or misunderstanding about the\\nsource of that product, in violation of the Tennessee Consumer Protection Act of 1977, Tenn.\\nCode Ann. § 47-18-101 et seq. For the reasons set forth below, we AFFIRM IN PART and\\nREVERSE IN PART the district court’s summary judgment order.\\n\\n BACKGROUND\\n\\n Factual Background\\n\\n Plaintiffs are a family of six that resides in Davidson County, Tennessee. Defendant is a\\ncorporation that operates a worldwide online marketplace. Defendant’s marketplace facilitates\\nthe sale of products from sellers, including both Defendant and third-party sellers, to buyers.1\\nW2M Trading Corp. (“W2M”) is a corporation that at one time was a third-party seller that\\nutilized Defendant’s marketplace to sell hoverboards.\\n\\n\\n\\n\\n 1There has been significant disagreement over how to characterize sellers, other than Defendant, that utilize\\nDefendant’s marketplace. Plaintiffs characterize them as “co-sellers.” Defendant characterizes them as “third-party\\nsellers.” And the district court characterized them as “sellers.” We refer to such sellers as “third-party sellers”\\nbecause that term accurately and appropriately reflects the fact that they are sellers, other than Defendant, that\\nutilize Defendant’s marketplace. See Hart v. Amazon.com, Inc., 845 F.3d 802, 803 (7th Cir. 2017) (referring to\\n“third-party sellers”); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 234 n.4 (2d Cir. 2016) (referring to “third-party\\nsellers”); Multi Time Machine, Inc. v. Amazon.com, Inc., 804 F.3d 930, 933 (8th Cir. 2015) (referring to “third-party\\nsellers”).\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 3\\n\\n\\n In November 2015, Defendant’s marketplace contained a webpage offering for sale a\\nFITURBO F1 hoverboard. The webpage contained, among other things, the purchase price,\\n$274.79, and a detailed product description, including that the hoverboard was equipped with an\\n“original Samsung advanced battery pack.” (RE 150, PageID # 2117.)2 Defendant did not set\\nthe purchase price or develop any of the product-related content that appeared on the webpage.\\n\\n On November 3, 2015, Plaintiff Megan Fox accessed the webpage and purchased a\\nFITURBO F1 hoverboard. At that time, Plaintiff believed that Defendant owned the hoverboard,\\nand that she purchased the hoverboard from Defendant. However, Defendant’s records show\\nthat W2M owned the hoverboard, and that Plaintiff purchased the hoverboard from W2M. For\\ninstance, Plaintiff’s order history lists the hoverboard’s “[s]eller of record” as “W2M Trading\\nCorp.”3 (RE 120, PageID # 1566.) Neither Defendant nor W2M manufactured the hoverboard;\\nthe manufacturer remains unknown.\\n\\n Plaintiff Megan Fox paid the purchase price to Defendant, and the purchase receipt was\\nsent from “amazon.com” to Plaintiff’s email address. (RE 161, PageID # 2205.) The receipt\\ncontained various details about the purchase, including the order date, the shipment date, the\\nshipping address, and the billing address. The receipt also contained the phrase, “Sold\\nby: -DEAL-.” (Id.)\\n\\n Defendant operates a program known as “Fulfillment by Amazon” (“FBA”), through\\nwhich third-party sellers can opt to use storage and shipping services offered by Defendant. If a\\nthird-party seller participates in FBA, its products are stored in an Amazon Fulfillment Center\\nuntil they are purchased, at which point Defendant ships the products to the buyers. Participants\\nin FBA pay a fee to Defendant for these services, but retain title to their products.\\n\\n The parties disagree over whether W2M participated in FBA, and accordingly over\\nwhether W2M or Defendant stored and shipped the hoverboard purchased by Plaintiff Megan\\n\\n 2Except as otherwise indicated, record citations refer to the record in district court action No. 16-cv-03013.\\n 3Plaintiff’s order history also states that the hoverboard was “[s]old by: W-Deals,” and that the “[s]eller\\nname” was “W-Deals.” (RE 120, PageID # 1566.) W2M chose the name “W-Deals,” as well as the\\nname “-DEAL-,” pursuant to Defendant’s policy permitting third-party sellers to choose “friendly names” by which\\nthey could be identified as a seller of their products. (RE 119-1, PageID # 1500.)\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 4\\n\\n\\nFox. Defendant’s records show that, in 2015, W2M participated in FBA for some of the\\nproducts it sold on Defendant’s marketplace. Additionally, the hoverboard purchased by\\nPlaintiff was shipped from China via Federal Express, arrived in an Amazon-labeled box, and its\\nAmazon Standard Identification Number (“ASIN”) was B00WGX04YM. And Defendant’s\\nrecords show that, in 2015, Defendant had Amazon Fulfillment Centers in China, shipped items\\nvia Federal Express in Amazon-labeled boxes, and stored a hoverboard with the ASIN\\nB00WGX04YM. However, Defendant’s records also show that multiple third-party sellers sold\\nhoverboards with the ASIN B00WGX04YM, and that Plaintiff’s hoverboard was “[f]ulfilled by:\\nW-Deals.” (RE 120, PageID # 1566.) Plaintiff received the hoverboard sometime between\\nNovember 10, 2015 and November 17, 2015.\\n\\n Defendant requires all third-party sellers that utilize its marketplace to sign Defendant’s\\nBusiness Solutions Agreement (“BSA”). The BSA provides in part that third-party sellers are\\nprohibited from direct communication with buyers. Rather, all communication with buyers\\ncomes from Defendant. The BSA also provides that Defendant retains initial control over\\ncustomer payments. Generally, customers pay Defendant, and Defendant then remits those\\npayments to third-party sellers every 14 days. However, Defendant retains the right to impose a\\n90-day hold on those payments.\\n\\n The parties disagree over whether Defendant remitted Plaintiff Megan Fox’s payment to\\nW2M. Defendant’s records show that from January 1, 2015 through December 31, 2016,\\nDefendant remitted approximately $1.4 million in customer payments to W2M. However,\\nDefendant’s records do not show that Plaintiff’s payment specifically was remitted to W2M.\\n\\n Sometime in November 2015, following news reports of hoverboard fires and explosions,\\nDefendant began a thorough internal investigation into the dangers posed by hoverboards. That\\ninvestigation identified at least 17 complaints of hoverboard fires or explosions in the United\\nStates that involved hoverboards purchased on Defendant’s marketplace. For instance, on\\nNovember 30, 2015, a customer sent an email to Defendant’s CEO, Jeff Bezos, informing Bezos\\nthat a hoverboard the customer had purchased had burst into flames while his daughter was\\nriding it.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 5\\n\\n\\n Based on the results of the investigation, Damon Jones, Defendant’s product safety\\nmanager, was concerned that the entire product category of hoverboards was “bad.” (RE 117-5,\\nPageID # 1265.) In his view, “there was no precedent for this kind of event in the product safety\\ncommunity,” in part because of the “widespread nature of the problem.” (Id. at PageID # 1264–\\n65.) On December 10, 2015, the results were presented to “a broad set of senior decision-\\nmakers” at Defendant. (Id. at PageID # 1258.) By that time, Damon Jones had removed his own\\nhoverboard from his home.\\n\\n On December 11, 2015, Defendant ceased all hoverboard sales worldwide. At that time,\\nDefendant knew that approximately 250,000 hoverboards had been sold on its marketplace in the\\nprevious 30 days. At that time, Defendant knew that approximately 25% of those hoverboards\\nhad not yet been delivered. Also at that time, Defendant knew that it was likely that a majority\\nof those hoverboards would remain unopened until the holiday season in late December. As a\\nresult, Defendant made “contingency plans” in anticipation of more fires and explosions,\\nincluding scheduling employees to work on December 26, 2015 in order to monitor news reports\\nand customer complaints about hoverboard fires and explosions. (RE 161, PageID # 2209.)\\n\\n On December 12, 2015, Defendant sent an email to hoverboard purchasers that\\nDefendant described as intended to be “non-alarmist” because it would likely be “headline\\nnews.” (Id. at PageID # 2210.) The subject line of the email stated: “Important Product Safety\\nNotification Regarding your Amazon.com Order.” (RE 117-17, PageID # 1402.) The body of\\nthe email stated: “There have been news reports of safety issues involving products like the one\\nyou purchased that contain rechargeable lithium-ion batteries. As a precaution, we want to share\\nwith you some additional information about lithium-ion batteries and safety tips for using\\nproducts that contain them.” (Id.) The email included a link for the “information and safety\\ntips,” a link “to initiate a return,” and a request that the recipient “pass along this information” to\\nthe proper person if the hoverboard was purchased for someone else. (Id.) The email did not\\ninform hoverboard purchasers of any of the actions Defendant had taken to evaluate the dangers\\nposed by hoverboards, including the findings and results of its internal investigation. The email\\ndid not inform hoverboard purchasers that the reported safety issues included a risk of fire and\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 6\\n\\n\\nexplosion. And the email did not inform hoverboard purchasers that Defendant had ceased all\\nhoverboard sales worldwide.\\n\\n The December 12, 2015 email was sent to Plaintiff Megan Fox. Plaintiff does not recall\\nreceiving or reading the email. However, Plaintiff “had a habit” of reading emails sent to her\\nemail address. (RE 161, PageID # 2210.) Plaintiff testified that she would not have let the\\nhoverboard enter or remain in her home had she known that there had been 17 complaints of\\nhoverboard fires or explosions in the United States that involved hoverboards purchased on\\nDefendant’s marketplace, that Defendant anticipated additional complaints during the holiday\\nseason in late December, or that Defendant had ceased all hoverboard sales worldwide.\\n\\n On January 9, 2015, Matthew Fox was playing with his new hoverboard while the rest of\\nthe family was away from the home. Eventually, he stopped playing with the hoverboard and\\nleft it on the first floor of the family’s two-story home. When Hailey Fox returned to the home,\\nshe sent a text message to Plaintiff Megan Fox stating that she thought that someone had broken\\ninto the home. Plaintiff Megan Fox alerted Plaintiff Charles Brian Fox of Hailey’s message, and\\nhe drove home immediately, accompanied by Sarah and Rebecca Fox. By the time he arrived,\\nMatthew and Hailey had hidden on the second floor of the home, fearing an intruder.\\n\\n When Plaintiff Charles Brian Fox arrived, the home was on fire, and Matthew and Hailey\\nwere trapped on the second floor. He frantically searched for a way to enter the home, but the\\nintensity of the fire prevented him from getting inside. He then heard Hailey banging on a\\nsecond-floor window. At his instruction, Hailey broke the window, and jumped out.\\nHe attempted to break her fall. He then heard Matthew banging on another second-floor\\nwindow. Again, at his instruction, Matthew broke the window, and jumped out. Plaintiff Megan\\nFox arrived shortly thereafter to find that everyone had escaped from the home, but that the fire\\nwas still raging. As a result of the fire, the members of the Fox family suffered various physical\\nand psychological injuries, and their home, along with virtually all of the personal property\\ncontained therein, was destroyed.\\n\\n It is undisputed that the fire was caused by the lithium-ion battery in Plaintiff Megan\\nFox’s hoverboard.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 7\\n\\n\\n Procedural History\\n\\n Plaintiffs filed a complaint in the United States District Court for the Middle District of\\nTennessee against Defendant and W2M.4 Plaintiffs’ complaint alleges that Defendant (1) sold\\nPlaintiff Megan Fox a defective or unreasonably dangerous product, in violation of the\\nTennessee Products Liability Act of 1978, Tenn. Code Ann. § 29-28-101 et seq., (2) breached a\\nduty to warn Plaintiff Megan Fox about the defective or unreasonably dangerous nature of that\\nproduct, in violation of Tennessee tort law, and (3) caused Plaintiff Megan Fox confusion or\\nmisunderstanding about the source of that product, in violation of the Tennessee Consumer\\nProtection Act of 1977, Tenn. Code Ann. § 47-18-101 et seq. (Id.) Following discovery,\\nPlaintiffs filed a motion for partial summary judgment, and Defendant filed a motion for\\nsummary judgment. On May 30, 2018, the district court granted Defendant’s motion for\\nsummary judgment, reasoning that all of Plaintiffs’ claims failed as a matter of law.\\n\\n This appeal followed.\\n\\n DISCUSSION\\n\\n I. Standard of Review and Applicable Law\\n\\n We review a district court’s grant of summary judgment de novo, “drawing all reasonable\\ninferences in favor of the nonmoving party.” Rocheleau v. Elder Living Const., LLC, 814 F.3d\\n398, 400 (6th Cir. 2016) (quotation omitted). Summary judgment is appropriate where the\\nmovant demonstrates that there is “no genuine dispute as to any material fact and the movant is\\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Accordingly, summary judgment\\nmust be entered where the nonmovant “fails to make a showing sufficient to establish the\\nexistence of an element essential to that party’s case, and on which that party will bear the\\nburden of proof at trial.” United States v. Storey, 640 F.3d 739, 743 (6th Cir. 2011) (quotation\\nomitted).\\n\\n\\n\\n\\n 4Plaintiffs have since obtained a default judgment against W2M.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 8\\n\\n\\n Where, as here, our subject matter jurisdiction is based on diversity of citizenship, we\\napply the substantive law of the forum state. Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604,\\n607 (6th Cir. 2012). “Faithful application of a state’s law requires federal courts to ‘anticipate\\nhow the relevant state’s highest court would rule in the case.’” Id. (quotation omitted). Thus, we\\nare bound by controlling decisions of that court, and in the absence of decisions addressing the\\nissue, must predict how that court would rule by looking to “all available data.” Id. (quotation\\nomitted). However, this Court has often warned that “[f]ederal courts should be ‘extremely\\ncautious about adopting substantive innovation in state law.’” Id. at 608 (quotation omitted).\\n\\n II. Analysis\\n\\n A. Plaintiffs’ Tennessee Products Liability Act (“TPLA”) Claim\\n\\n The TPLA provides that a “manufacturer” or “seller” of a product may be liable for\\npersonal injury or property damage caused by that product if it was “in a defective condition or\\nunreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code\\nAnn. § 29-28-105(a). “Manufacturer” is defined as “the designer, fabricator, producer,\\ncompounder, processor, or assembler of [a] product or its component parts.” Id. § 29-28-102(4).\\nAnd “seller” is defined as “any individual or entity engaged in the business of selling a product,”\\nincluding a “retailer,” “wholesaler,” or “distributor,” as well as a “lessor” engaged in the\\nbusiness of leasing a product and a “bailor” engaged in the business of bailment of a product. Id.\\n§ 29-28-102(7).\\n\\n At issue in this case is whether Defendant is a “seller” of Plaintiff Megan Fox’s\\nhoverboard. Defendant argues that it “never had title to the hoverboard” and thus could not sell\\nit. (Brief for Appellee at 16.) Plaintiffs argue that Defendant “controlled all aspects of the\\n[hoverboard] sales transaction” and thus effectively sold it. (Brief for Appellants at 20.)\\nWe begin, as we must, with “the natural and ordinary meaning of the language used.” Penley v.\\nHonda Motor Co., 31 S.W.3d 181, 185 (Tenn. 2000) (quotation omitted).\\n\\n The TPLA’s definition of “seller” hinges on an individual’s or entity’s engagement “in\\nthe business of selling.” Tenn. Code Ann. § 29-28-102(7). Parsing this phrase, to “sell”\\ngenerally means to dispose of property “by sale.” See Sell, Black’s Law Dictionary (4th ed.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 9\\n\\n\\n1968); Sell, Black’s Law Dictionary (10th ed. 2014). A “sale” is generally a transfer of title to or\\npossession of property for an agreed upon price, or the agreement by which such a transfer takes\\nplace. See Sale, Black’s Law Dictionary (4th ed. 1968); Sale, Black’s Law Dictionary (10th ed.\\n2014). And to be engaged “in the business of” something generally means to be regularly\\nengaged in it for livelihood or gain. See Business, Black’s Law Dictionary (4th ed. 1968);\\nBusiness, Black’s Law Dictionary (10th ed. 2014); see also Rollins v. Cherokee Warehouses,\\nInc., 635 F. Supp. 136, 138 (E.D. Tenn. 1986).\\n\\n Accordingly, one possible construction of the TPLA’s definition of “seller” is any\\nindividual or entity regularly engaged in transferring title to a product for an agreed upon price,\\nfor livelihood or gain. Defendant argues that we should adopt this construction because it\\naccords with the Uniform Commercial Code, which Tennessee has adopted in relevant part.\\nSpecifically, the Uniform Commercial Code defines “seller” as “a person who sells or contracts\\nto sell goods,” and defines “sale” as “the passing of title from the seller to the buyer for a price.”\\nTenn. Code Ann. §§ 47-2-103(1)(d), 47-2-106(1).\\n\\n However, we are not persuaded that the Tennessee legislature intended such a limited\\nconstruction. See Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 2017) (“The cardinal rule of\\nstatutory construction is to effectuate legislative intent, with all rules of construction being aides\\nto that end.”). Significantly, the TPLA’s definition of “seller” expressly includes a “lessor” and\\na “bailor,” neither of which necessarily transfers title to the products they lease or bail. See, e.g.,\\nBailment, Black’s Law Dictionary (10th ed. 2014) (“Unlike a sale or gift of personal property, a\\nbailment involves a change in possession but not in title.”). Thus, this construction would result\\nin a definition of “seller” that excludes examples that the legislature explicitly included. And\\n“[a]n important canon of statutory construction counsels that a statute . . . should be interpreted\\nto preclude any part from being ‘inoperative, superfluous, void, or insignificant.’” Baker v.\\nState, 417 S.W.3d 428, 439 n.11 (Tenn. 2013) (quotation omitted).\\n\\n The Tennessee Supreme Court’s decision in Baker v. Promark Products West, Inc.,\\n692 S.W.2d 844 (Tenn. 1985) is instructive. In that case, the court held that a TPLA claim for\\nbreach of implied warranty can be maintained against a lessor or bailor of personal property,\\nnotwithstanding the fact that the Uniform Commercial Code provided that the warranty was\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 10\\n\\n\\nimplied only in certain contracts for “sale.” Id. at 847. The court reasoned that the legislature\\n“carefully considered who was to be a ‘seller’ in a products liability action,” and that the\\nlegislature’s inclusion of “lessor” and “bailor” in the TPLA’s definition of “seller” demonstrated\\nits intent “to extend protection for products liability injuries beyond the technical buyer-seller\\nrelationship encompassed by a strict interpretation of the Uniform Commercial Code.” Id.\\n(emphasis added). Accordingly, the court stated that in a products liability action for breach of\\nimplied warranty, no actual “sale” need occur, whereas “if the action is not a products liability\\naction . . . an actual ‘sale’ [is] required.” Id.\\n\\n This Court’s decision in Winningham v. Ciba-Geigy Corp., 156 F.3d 1234 (6th Cir. July\\n14, 1998) (Table) is similarly instructive. In that case, this Court held that the TPLA’s statute of\\nrepose applies to bailments, notwithstanding the fact that it runs from the date on which the\\nproduct was “purchased.” Id. at *3. This Court reasoned that the legislature’s inclusion of\\n“lessor” and “bailor” in the TPLA’s definition of “seller” demonstrated its intent that the statute\\nof repose apply regardless of the occurrence of an actual sale. Id. Accordingly, this Court stated\\nthat the plaintiffs’ argument “that no title passed . . . and thus no sale occurred . . . ignore[d] the\\ndefinition of the term ‘seller’ in the TPLA.” Id. Thus, it would seem that the TPLA’s definition\\nof “seller” is not limited to any individual or entity regularly engaged in transferring title to a\\nproduct for an agreed upon price, for livelihood or gain.\\n\\n Another possible construction of the TPLA’s definition of “seller” is any individual or\\nentity regularly engaged in exercising sufficient control over a product in connection with its\\nsale, lease, or bailment, for livelihood or gain. Plaintiffs argue that we should adopt this\\nconstruction because it accords with the text of the TPLA and Tennessee case law.\\n\\n Plaintiffs’ argument is persuasive. Unlike the construction urged by Defendant, this\\nconstruction is broad enough to include all of the TPLA’s examples of a “seller”—a “retailer,” a\\n“wholesaler,” a “distributor,” a “lessor,” and a “bailor,” Tenn. Code Ann. § 29-28-102(7)—each\\nof which exercises a significant degree of control over the products they sell, lease, or bail. This\\nconstruction also accords with Tenn. Code. Ann. § 29-28-105(a), the “key operative provision”\\nof the TPLA, Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 689 (Tenn. 1995), and with\\nTennessee case law. As stated above, § 29-28-105(a) provides that the liability of a\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 11\\n\\n\\n“manufacturer” or “seller” is contingent upon whether the product was “in a defective condition\\nor unreasonably dangerous at the time it left the control of the manufacturer or seller.”\\n(emphasis added). And in Baker, the Tennessee Supreme Court explained that a TPLA claim for\\nbreach of implied warranty can be maintained “[r]egardless of whether title passes in the\\ntransaction” because “one party to the relationship is in a better position to know and control the\\ncondition of the chattel.” 692 S.W.2d at 848 (emphasis added). Thus, both the legislature and\\nTennessee Supreme Court have indicated that control is an important consideration underlying\\nproducts liability law.\\n\\n Moreover, this construction is consistent with the remedial purpose of the TPLA.\\n“A primary purpose of [the TPLA] is ‘to ensure that an injured consumer may maintain a strict\\nliability action against whomever is most likely to compensate him for his injuries.’” Owens v.\\nTruckstops of Am., 915 S.W.2d 420, 432 (Tenn. 1996) (quotation omitted). In furtherance of that\\npurpose, the TPLA plainly provides that where the manufacturer and others in the chain of\\ndistribution are “not amenable to service of process,” “insolvent,” or unknown, “an injured\\nconsumer can assert liability against [a] ‘faultless’ seller. Id. Otherwise, “the injured consumer\\nwould be left with no remedy.” Id.; see also Baker, 692 S.W.2d at 848.\\n\\n In this case, Defendant is clearly the entity “most likely to compensate” Plaintiffs for\\ntheir injuries. See Owens, 915 S.W.2d at 432. The third-party seller and manufacturer of\\nPlaintiff Megan Fox’s hoverboard, to whom Plaintiffs might otherwise look for compensation,\\nappear to be judgment-proof and unknown respectively. And Defendant certainly has the\\ncapacity to compensate Plaintiffs, as it accounts for 49.1% of all online retail spending in the\\nUnited States, nearly more than all other online retailers combined, and generated $141.92\\nbillion in product sales in 2018, including $13.38 billion in fees paid by third-party sellers in the\\nfourth quarter alone.5 The combination of these two facts—Defendant’s ability to facilitate the\\nsale of goods by sellers who are functionally outside the reach of U.S. courts, and its online retail\\n\\n\\n 5See Ingrid Lunden, Amazon’s Share Of The US E-Commerce Market Is Now 49%, Or 5% Of All Retail\\nSpend, TechCrunch (July 13, 2018), https://techcrunch.com/2018/07/13/amazons-share-of-the-us-e-commerce-\\nmarket-is-now-49-or-5-of-all-retail-spend/ (last visited March 29, 2019); Allison Enright, Amazon’s Product Sales\\nClimb Nearly 20% in 2018, But Only 8% In Q4, Digital Commerce 360 (Jan. 31, 2019),\\nhttps://www.digitalcommerce360.com/article/amazon-sales/ (last visited March 29, 2019).\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 12\\n\\n\\ndominance—often drastically hinders the ability of consumers injured by defective or\\nunreasonably dangerous products to receive compensation for their injuries.\\n\\n Defendant also has the capability to spur the manufacturing and sale of safer products in\\nthe future, which is a primary purpose behind the doctrine of products liability in general. See\\nOwens, 915 S.W.2d at 432; Baker, 692 S.W.2d at 847. That capability can indeed be seen in\\nseveral of the facts of this case. Defendant required W2M to sign its BSA, which imposed\\nvarious restrictions on W2M’s ability to sell products on Defendant’s marketplace. Defendant\\nattempted to demand safety compliance documentation from third-party hoverboard sellers\\nfollowing initial reports of hoverboard fires and explosions. And Defendant eventually ceased\\nall hoverboard sales on its marketplace worldwide.\\n\\n Lastly, we note that courts applying the products liability law of other states have also\\nconsidered or adopted constructions of “seller” or other similar terms that hinge on the degree of\\ncontrol exercised over a product. See, e.g., Erie Ins. Co. v. Amazon.com, Inc., _ F.3d _, No. 18-\\n1198, 2019 WL 2195146, at *3 (4th Cir. May 22, 2019); Garber v. Amazon.com, Inc., _ F. Supp.\\n3d _, No.17-C-673, 2019 WL 1437877, at *7 (N.D. Ill. Mar. 31, 2019); Carpenter v.\\nAmazon.com, Inc., No. 17-03221-JST, 2019 WL 1259158, at *4 (N.D. Cal. Mar. 19, 2019);\\nEberhart v. Amazon.com, Inc., 325 F. Supp. 3d 393, 398–99 (S.D.N.Y. 2018); Allstate N.J. Ins.\\nCo. v. Amazon.com, Inc., No. 17-2738, 2018 WL 3546197, at *7–10 (D.N.J. July 24, 2018);\\nOberdorf v. Amazon.com, Inc., 295 F. Supp. 3d 496, 498 (M.D. Pa. 2017); see also Stiner v.\\nAmazon.com, Inc., 120 N.E.3d 885, 895 (Ohio Ct. App. 2019).\\n\\n Thus, we hold that the TPLA’s definition of “seller” means any individual regularly\\nengaged in exercising sufficient control over a product in connection with its sale, lease, or\\nbailment, for livelihood or gain. We turn next to an application of that definition to the facts of\\nthis case.\\n\\n Plaintiffs argue that Defendant exercised sufficient control over Plaintiff Megan Fox’s\\nhoverboard because Defendant (1) stored and shipped the hoverboard, (2) initially obtained the\\npayment made in exchange for the hoverboard, (3) retained the payment made in exchange for\\nthe hoverboard, and (4) handled all communications with Plaintiff Megan Fox regarding the\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 13\\n\\n\\nhoverboard. However, Plaintiffs’ first and third assertions are belied by the record. Defendant’s\\nrecords demonstrate both that the hoverboard was “[f]ulfilled by: W-Deals,” (RE 120, PageID\\n# 1566.), and that Defendant remitted approximately $1.4 million in customer payments to W2M\\nbetween January 1, 2015 and December 31, 2016, a time period which includes Plaintiff Megan\\nFox’s hoverboard purchase. Plaintiffs ask us to infer that stray pieces of circumstantial evidence\\ncast doubt on the accuracy of these records, and stress that this case is at the summary judgment\\nstage; but summary judgment “does not allow, much less require that we draw strained and\\nunreasonable inferences in favor of the nonmovant.” Audi AG v. D’Amato, 469 F.3d 534, 545\\n(6th Cir. 2006) (quotation omitted).\\n\\n What remains—Plaintiff’s second and fourth assertions—is not a sufficient exercise of\\ncontrol to be deemed a “seller” under the TPLA. In contrast to those assertions, Defendant did\\nnot choose to offer the hoverboard for sale, did not set the price of the hoverboard, and did not\\nmake any representations about the safety or specifications of the hoverboard on its marketplace.\\nWe also note that courts applying the products liability law of other states to comparable facts\\nhave reached similar conclusions. See, e.g., Garber, 2019 WL 1437877, at *7, *10; Carpenter,\\n2019 WL 1259158, at *5; Stiner, 120 N.E.3d at 895. At bottom, we are not convinced, on the\\nrecord before us, that Defendant exercised sufficient control over Plaintiff Megan Fox’s\\nhoverboard to be deemed a “seller” of the hoverboard under the TPLA. Thus, we hold that there\\nis no genuine dispute of material fact regarding Plaintiffs’ TPLA claim, and affirm the district\\ncourt’s dismissal.6\\n\\n B. Plaintiffs’ Tennessee Tort Law Claim\\n\\n Tennessee tort law provides that an individual can assume a duty to act, and thereby\\nbecome subject to the duty of acting reasonably. Grogan v. Uggla, 535 S.W.3d 864, 871 (Tenn.\\n2017). In evaluating whether such a duty has been assumed, Tennessee courts look to the\\nRestatement (Second) of Torts §§ 323, 324A. Id. at 873; see also Downs v. Bush, 263 S.W.3d\\n812, 820 (Tenn. 2008). Section 323 states:\\n\\n\\n 6Accordingly, we need not decide whether the Communications Decency Act, 47 U.S.C § 230, grants\\nDefendant immunity from Plaintiffs’ TPLA claim.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 14\\n\\n\\n One who undertakes, gratuitously or for consideration, to render services to\\n another which he should recognize as necessary for the protection of the other’s\\n person or things, is subject to the liability to the other for physical harm resulting\\n from his failure to exercise reasonable care to perform his undertaking, if\\n (a) his failure to exercise reasonable care increases the risk of such harm, or\\n (b) the harm is suffered because of the other’s reliance upon the undertaking.\\n\\nRestatement (Second) of Torts § 323 (emphasis added). And § 324A states:\\n\\n One who undertakes, gratuitously or for consideration, to render services to\\n another which he should recognize as necessary for the protection of a third\\n person or his things, is subject to liability to the third person for physical harm\\n resulting from his failure to exercise reasonable care to protect his undertaking if\\n (a) his failure to exercise reasonable care increases the risk of such harm, or\\n (b) he has undertaken to perform a duty owed by the other to the third person, or\\n (c) the harm is suffered because of reliance of the other or the third person upon\\n the undertaking.\\n\\nRestatement (Second) of Torts § 324A (emphasis added).\\n\\n Evidently, the rule stated in § 324A “parallels the one stated in § 323.” Grogan,\\n535 S.W.3d at 873 n.10 (quotation omitted). However, the emphasized references in the\\nRestatement highlight a crucial difference. Section 323 governs liability to the person to whom\\nthe defendant undertook to render services, while § 324A governs liability to persons other than\\nthe person to whom the defendant undertook to render services. Id.\\n\\n In this case, Plaintiffs allege that Defendant gratuitously undertook to warn Plaintiff\\nMegan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015\\nemail, that Defendant was negligent in that undertaking, and that Defendant’s negligence caused\\nthem harm. The district court held that § 324A was inapplicable to Plaintiffs’ claims because it\\n“contemplate[d] liability to third parties.” (RE 161, PageID # 2221–22.) And the district court\\nalso held that Plaintiffs forfeited any § 323 claim. The first holding was erroneous, and the\\nsecond we need not address.\\n\\n By its plain terms, § 324A governs liability to persons other than the person to whom the\\ndefendant undertook to render services. Grogan 535 S.W.3d at 872–73 & n.10. For instance, in\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 15\\n\\n\\nBiscan v. Brown, the plaintiff argued that the defendant undertook to monitor minors at a party at\\nwhich alcohol was served, and that the defendant’s negligent monitoring caused physical harm to\\nthe plaintiff—a motorist who was injured in a car accident with an intoxicated minor who had\\nattended the party. 160 S.W.3d 462, 483 (Tenn. 2005). Similarly, in this case, Plaintiffs argue\\nthat Defendant undertook to warn Plaintiff Megan Fox when it sent her the December 12, 2015\\nemail, and that Defendant’s negligent warning caused physical harm to the other members of her\\nfamily. Accordingly, while Defendant’s liability to Plaintiff Megan Fox is properly governed by\\n§ 323, Defendant’s liability to the other members of her family is properly governed by § 324A.7\\nSee Grogan, 535 S.W.3d at 872–73. Thus, the district court’s holding that § 324A was\\ninapplicable to Plaintiffs’ Tennessee tort law claim was erroneous.\\n\\n Applying § 324A to the facts of this case, Defendant chose to send the December 12,\\n2015 email to Plaintiff Megan Fox, and in doing so plainly sought to warn her of the dangers\\nposed by the hoverboard. The body of the email stated: “There have been news reports of safety\\nissues involving products like the one you purchased that contain rechargeable lithium-ion\\nbatteries. As a precaution, we want to share with you some additional information about lithium-\\nion batteries and safety tips for using products that contain them.” (RE 117-17, PageID # 1402.)\\nAnd Defendant just as plainly recognized the warning as necessary for the protection of a third\\nparty or his things. The body of the email also specifically requested that the recipient “pass\\nalong this information” to the proper person if the hoverboard was purchased for someone else.\\n(Id.) Thus, we hold that Defendant assumed a duty to warn Plaintiff Megan Fox of the dangers\\nposed by the hoverboard when it sent her the December 12, 2015 email. See Grogan,\\n535 S.W.3d at 874 (“[T]he question of whether one has assumed a duty to act is . . . a question of\\nlaw.”) (alterations in original) (quotation omitted).\\n\\n Given that Defendant assumed a duty to act, there remain genuine issues of material fact\\nregarding whether Defendant breached that duty and whether any breach caused Plaintiffs\\nphysical harm. For instance, there is a genuine issue of material fact regarding whether\\nDefendant’s failure to include certain information in the December 12, 2015 email amounted to\\n\\n 7Plaintiff Megan Fox does not allege that she suffered any physical harm, therefore we need not decide\\nwhether she forfeited her § 323 claim, for it fails as a matter of law. See Grogan, 535 S.W.3d at 874.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 16\\n\\n\\nnegligence. The email did not inform hoverboard purchasers of any of the actions Defendant had\\ntaken to evaluate the dangers posed by hoverboard, including the findings and results of its\\ninternal investigation. The email did not inform hoverboard purchasers that the reported safety\\nissues included a risk of fire or explosion. And the email did not inform hoverboard purchasers\\nthat Defendant had ceased all hoverboard sales worldwide.\\n\\n Additionally, there is a genuine issue of material fact regarding whether Plaintiff Megan\\nFox read the December 12, 2015 email, and thereby could have acted in reliance on it.\\nSuch reliance is required by subsection (c) of § 324A, one of three subsections under which\\nPlaintiffs’ claim may proceed. Though Plaintiff has no specific recollection of reading the email,\\nshe “had a habit” of reading emails sent to her email address. (RE 161, PageID # 2210.)\\nPlaintiff also testified that she would not have let the hoverboard enter or remain in her home had\\nshe known, among other things, that there had been 17 complaints of hoverboard fires or\\nexplosions in the United States that involved hoverboards purchased on Defendant’s\\nmarketplace, that Defendant anticipated additional complaints, particularly during the holiday\\nseason in late December, or that Defendant had ceased all hoverboard sales worldwide.\\n\\n Thus, we hold that there are genuine disputes of material fact regarding Plaintiffs’\\nTennessee tort law claim, and reverse the district court’s dismissal.8\\n\\n C. Plaintiffs’ Tennessee Consumer Protection Act (“TCPA”) Claim\\n\\n The TCPA prohibits “[u]nfair or deceptive acts or practices affecting the conduct of any\\ntrade or commence,” including “[c]ausing likelihood of confusion or of misunderstanding as to\\nthe source, sponsorship, approval, or certification of goods or services.” Tenn. Code Ann. § 47-\\n18-104(a), (b)(2). In this case, Plaintiffs allege that Defendant’s policy allowing third-party\\nsellers to choose “friendly names” by which they would be identified as a seller of their products\\ncaused a likelihood of confusion or misunderstanding as to the source of the hoverboard.\\nSpecifically, Plaintiffs allege that Defendant’s policy deceptively caused Plaintiff Megan Fox to\\n\\n\\n 8Defendant concedes that the Communications Decency Act, 47 U.S.C § 230, does not grant it immunity\\nfrom Plaintiffs’ Tennessee tort law claim. (RE 120, PageID # 1583.) (“All of Plaintiffs’ claims except those arising\\nfrom the December 12 email require treating Amazon as a publisher of W-Deals’ offer.”).\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 17\\n\\n\\nbelieve that Defendant owned the hoverboard, and that she was purchasing the hoverboard from\\nDefendant.\\n\\n The district court held that Plaintiffs did not “demonstrate a sufficient causal link” to state\\ntheir TCPA claim. (RE 161, PageID # 2227.) On appeal, Plaintiffs argue (1) that they did\\ndemonstrate a sufficient causal link, and (2) that the district court erroneously granted summary\\njudgment on grounds not briefed by the parties. Defendant argues that the district court properly\\ndetermined that Plaintiffs did not demonstrate a sufficient causal link.\\n\\n In order to prevail on a claim under the TCPA, “the alleged unfair or deceptive act or\\npractice must in fact cause the damages of which the plaintiff complains.” White v. Early,\\n211 S.W.3d 723, 743 (Tenn. Ct. App. 2006). Accordingly, Plaintiffs must demonstrate that\\nPlaintiff Megan Fox would not have purchased the hoverboard but for W2M’s choice and use of\\nthe “friendly names” “W-Deals” and “-DEAL-.” Plaintiffs rely solely on Plaintiff Megan Fox’s\\naffidavit to satisfy this element of their TCPA claim.\\n\\n Plaintiff’s affidavit states that she “do[es] not recall noticing the name ‘-DEAL-’ as the\\nseller of the hoverboard.” (RE 146-3, PageID # 1942.) While it also states that “even if [she]\\nhad noticed the name ‘-DEAL-’ as the ‘[s]eller’” she would not have “recognized or understood\\nthose names to refer to a third-party seller,” that statement does not demonstrate the requisite\\ncausal link. It does not establish that but for W2M’s choice and use of the “friendly names” “W-\\nDeals” and “-DEAL-” Plaintiff would not have purchased the hoverboard. See Hamlin v. Trans-\\nDapt of Cal., Inc., 584 F. Supp. 2d 1050, 1058 (M.D. Tenn. 2008) (granting judgment as a matter\\nof law on a TCPA claim because “there [was] no indication that [the plaintiff’s] loss was caused\\nby . . . reliance on a false impression” created by the defendant).\\n\\n Plaintiffs also argue that the district court improperly granted summary judgment on\\ncausation grounds because causation was not briefed by the parties. See Smith v. Perkins Bd. of\\nEduc., 708 F.3d 821, 828 (6th Cir. 2013). However, Defendant asserted in support of its motion\\nfor summary judgment that Plaintiffs “d[id] not tie any Amazon conduct to any acts or practices\\ndeclared unlawful by Section 47-18-104(b) of the TCPA.” (RE 120, PageID # 1579.) This\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 18\\n\\n\\nassertion was sufficient to put Plaintiffs “on notice that [they] had to muster the necessary facts\\nto withstand summary judgment” on causation grounds. Smith, 708 F.3d at 829.\\n\\n Thus, we hold that there is no genuine issue of material fact regarding Plaintiffs’ TCPA\\nclaim, and affirm the district court’s dismissal.9\\n\\n CONCLUSION\\n\\n For the reasons set forth above, we AFFIRM the district court’s summary judgment\\norder with respect to Plaintiffs’ TPLA and TCPA claims, and REVERSE the district court’s\\nsummary judgment order with respect to Plaintiffs’ Tennessee tort law claim.\\n\\n\\n\\n\\n 9Accordingly, we need not decide whether the Communications Decency Act, 47 U.S.C. § 230, grants\\nDefendant immunity from Plaintiffs’ TCPA claim.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405228/\", \"author_raw\": \"No. 3:16-cv-03013-William Lynn Campbell, Jr., District Judge\"}]}"},"judge1":{"kind":"string","value":"CLAY"},"judge2":{"kind":"string","value":"STRANCH"},"judge3":{"kind":"string","value":"PEARSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"CLAY\": \", Circuit\", \"STRANCH\": \", Circuit\", \"PEARSON\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627975/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Charles Brian FOX and Megan Fox, Individually and as Parents and Next Friends of Hailey Fox; Matthew Fox; Rebecca Fox ; Sarah Fox, Plaintiffs-Appellants, v. AMAZON.COM, INC., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0123p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n CHARLES BRIAN FOX and MEGAN FOX, Individually ┐\n and as Parents and Next Friends of HAILEY FOX; │\n MATTHEW FOX; REBECCA FOX; SARAH FOX, │\n Plaintiffs-Appellants, │\n │\n > No. 18-5661\n v. │\n │\n │\n AMAZON.COM, INC., │\n Defendant-Appellee. │\n │\n ┘\n\n Appeal from the United States District Court\n for the Middle District of Tennessee at Nashville.\n No. 3:16-cv-03013—William Lynn Campbell, Jr., District Judge.\n\n Argued: March 14, 2019\n\n Decided and Filed: June 10, 2019\n\n Before: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge. *\n\n _________________\n\n COUNSEL\n\nARGUED: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee, for\nAppellants. Brendan Murphy, PERKINS COIE LLP, Seattle, Washington, for Appellee.\nON BRIEF: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee,\nMark E. Spear, Kaylin L. Hart, SPEAR, SPEAR & HAMBY, P.C., Mobile, Alabama, Donald\nCapparella, DODSON PARKER BEHM & CAPPARELLA, P.C., Nashville, Tennessee, for\nAppellants. Brendan Murphy, Eric D. Miller, Rachel Constantino-Wallace, PERKINS COIE\nLLP, Seattle, Washington, Lela M. Hollabaugh, Scott Burnett Smith, BRADLEY ARANT\nBOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee.\n\n *The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by\ndesignation.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n CLAY, Circuit Judge. Plaintiffs Charles Brian and Megan Fox, individually and as\nparents and next friends of their minor children Hailey, Matthew, Rebecca, and Sarah Fox,\nappeal the district court’s May 30, 2018 order granting summary judgment in favor of Defendant\nAmazon.com, Inc. Plaintiffs’ complaint alleges that Defendant (1) sold Plaintiff Megan Fox a\ndefective or unreasonably dangerous product, in violation of the Tennessee Products Liability\nAct of 1978, Tenn. Code Ann. § 29-28-101 et seq., (2) breached a duty to warn Plaintiff Megan\nFox about the defective or unreasonably dangerous nature of that product, in violation of\nTennessee tort law, and (3) caused Plaintiff Megan Fox confusion or misunderstanding about the\nsource of that product, in violation of the Tennessee Consumer Protection Act of 1977, Tenn.\nCode Ann. § 47-18-101 et seq. For the reasons set forth below, we AFFIRM IN PART and\nREVERSE IN PART the district court’s summary judgment order.\n\n BACKGROUND\n\n Factual Background\n\n Plaintiffs are a family of six that resides in Davidson County, Tennessee. Defendant is a\ncorporation that operates a worldwide online marketplace. Defendant’s marketplace facilitates\nthe sale of products from sellers, including both Defendant and third-party sellers, to buyers.1\nW2M Trading Corp. (“W2M”) is a corporation that at one time was a third-party seller that\nutilized Defendant’s marketplace to sell hoverboards.\n\n\n\n\n 1There has been significant disagreement over how to characterize sellers, other than Defendant, that utilize\nDefendant’s marketplace. Plaintiffs characterize them as “co-sellers.” Defendant characterizes them as “third-party\nsellers.” And the district court characterized them as “sellers.” We refer to such sellers as “third-party sellers”\nbecause that term accurately and appropriately reflects the fact that they are sellers, other than Defendant, that\nutilize Defendant’s marketplace. See Hart v. Amazon.com, Inc., 845 F.3d 802, 803 (7th Cir. 2017) (referring to\n“third-party sellers”); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 234 n.4 (2d Cir. 2016) (referring to “third-party\nsellers”); Multi Time Machine, Inc. v. Amazon.com, Inc., 804 F.3d 930, 933 (8th Cir. 2015) (referring to “third-party\nsellers”).\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 3\n\n\n In November 2015, Defendant’s marketplace contained a webpage offering for sale a\nFITURBO F1 hoverboard. The webpage contained, among other things, the purchase price,\n$274.79, and a detailed product description, including that the hoverboard was equipped with an\n“original Samsung advanced battery pack.” (RE 150, PageID # 2117.)2 Defendant did not set\nthe purchase price or develop any of the product-related content that appeared on the webpage.\n\n On November 3, 2015, Plaintiff Megan Fox accessed the webpage and purchased a\nFITURBO F1 hoverboard. At that time, Plaintiff believed that Defendant owned the hoverboard,\nand that she purchased the hoverboard from Defendant. However, Defendant’s records show\nthat W2M owned the hoverboard, and that Plaintiff purchased the hoverboard from W2M. For\ninstance, Plaintiff’s order history lists the hoverboard’s “[s]eller of record” as “W2M Trading\nCorp.”3 (RE 120, PageID # 1566.) Neither Defendant nor W2M manufactured the hoverboard;\nthe manufacturer remains unknown.\n\n Plaintiff Megan Fox paid the purchase price to Defendant, and the purchase receipt was\nsent from “amazon.com” to Plaintiff’s email address. (RE 161, PageID # 2205.) The receipt\ncontained various details about the purchase, including the order date, the shipment date, the\nshipping address, and the billing address. The receipt also contained the phrase, “Sold\nby: -DEAL-.” (Id.)\n\n Defendant operates a program known as “Fulfillment by Amazon” (“FBA”), through\nwhich third-party sellers can opt to use storage and shipping services offered by Defendant. If a\nthird-party seller participates in FBA, its products are stored in an Amazon Fulfillment Center\nuntil they are purchased, at which point Defendant ships the products to the buyers. Participants\nin FBA pay a fee to Defendant for these services, but retain title to their products.\n\n The parties disagree over whether W2M participated in FBA, and accordingly over\nwhether W2M or Defendant stored and shipped the hoverboard purchased by Plaintiff Megan\n\n 2Except as otherwise indicated, record citations refer to the record in district court action No. 16-cv-03013.\n 3Plaintiff’s order history also states that the hoverboard was “[s]old by: W-Deals,” and that the “[s]eller\nname” was “W-Deals.” (RE 120, PageID # 1566.) W2M chose the name “W-Deals,” as well as the\nname “-DEAL-,” pursuant to Defendant’s policy permitting third-party sellers to choose “friendly names” by which\nthey could be identified as a seller of their products. (RE 119-1, PageID # 1500.)\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 4\n\n\nFox. Defendant’s records show that, in 2015, W2M participated in FBA for some of the\nproducts it sold on Defendant’s marketplace. Additionally, the hoverboard purchased by\nPlaintiff was shipped from China via Federal Express, arrived in an Amazon-labeled box, and its\nAmazon Standard Identification Number (“ASIN”) was B00WGX04YM. And Defendant’s\nrecords show that, in 2015, Defendant had Amazon Fulfillment Centers in China, shipped items\nvia Federal Express in Amazon-labeled boxes, and stored a hoverboard with the ASIN\nB00WGX04YM. However, Defendant’s records also show that multiple third-party sellers sold\nhoverboards with the ASIN B00WGX04YM, and that Plaintiff’s hoverboard was “[f]ulfilled by:\nW-Deals.” (RE 120, PageID # 1566.) Plaintiff received the hoverboard sometime between\nNovember 10, 2015 and November 17, 2015.\n\n Defendant requires all third-party sellers that utilize its marketplace to sign Defendant’s\nBusiness Solutions Agreement (“BSA”). The BSA provides in part that third-party sellers are\nprohibited from direct communication with buyers. Rather, all communication with buyers\ncomes from Defendant. The BSA also provides that Defendant retains initial control over\ncustomer payments. Generally, customers pay Defendant, and Defendant then remits those\npayments to third-party sellers every 14 days. However, Defendant retains the right to impose a\n90-day hold on those payments.\n\n The parties disagree over whether Defendant remitted Plaintiff Megan Fox’s payment to\nW2M. Defendant’s records show that from January 1, 2015 through December 31, 2016,\nDefendant remitted approximately $1.4 million in customer payments to W2M. However,\nDefendant’s records do not show that Plaintiff’s payment specifically was remitted to W2M.\n\n Sometime in November 2015, following news reports of hoverboard fires and explosions,\nDefendant began a thorough internal investigation into the dangers posed by hoverboards. That\ninvestigation identified at least 17 complaints of hoverboard fires or explosions in the United\nStates that involved hoverboards purchased on Defendant’s marketplace. For instance, on\nNovember 30, 2015, a customer sent an email to Defendant’s CEO, Jeff Bezos, informing Bezos\nthat a hoverboard the customer had purchased had burst into flames while his daughter was\nriding it.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 5\n\n\n Based on the results of the investigation, Damon Jones, Defendant’s product safety\nmanager, was concerned that the entire product category of hoverboards was “bad.” (RE 117-5,\nPageID # 1265.) In his view, “there was no precedent for this kind of event in the product safety\ncommunity,” in part because of the “widespread nature of the problem.” (Id. at PageID # 1264–\n65.) On December 10, 2015, the results were presented to “a broad set of senior decision-\nmakers” at Defendant. (Id. at PageID # 1258.) By that time, Damon Jones had removed his own\nhoverboard from his home.\n\n On December 11, 2015, Defendant ceased all hoverboard sales worldwide. At that time,\nDefendant knew that approximately 250,000 hoverboards had been sold on its marketplace in the\nprevious 30 days. At that time, Defendant knew that approximately 25% of those hoverboards\nhad not yet been delivered. Also at that time, Defendant knew that it was likely that a majority\nof those hoverboards would remain unopened until the holiday season in late December. As a\nresult, Defendant made “contingency plans” in anticipation of more fires and explosions,\nincluding scheduling employees to work on December 26, 2015 in order to monitor news reports\nand customer complaints about hoverboard fires and explosions. (RE 161, PageID # 2209.)\n\n On December 12, 2015, Defendant sent an email to hoverboard purchasers that\nDefendant described as intended to be “non-alarmist” because it would likely be “headline\nnews.” (Id. at PageID # 2210.) The subject line of the email stated: “Important Product Safety\nNotification Regarding your Amazon.com Order.” (RE 117-17, PageID # 1402.) The body of\nthe email stated: “There have been news reports of safety issues involving products like the one\nyou purchased that contain rechargeable lithium-ion batteries. As a precaution, we want to share\nwith you some additional information about lithium-ion batteries and safety tips for using\nproducts that contain them.” (Id.) The email included a link for the “information and safety\ntips,” a link “to initiate a return,” and a request that the recipient “pass along this information” to\nthe proper person if the hoverboard was purchased for someone else. (Id.) The email did not\ninform hoverboard purchasers of any of the actions Defendant had taken to evaluate the dangers\nposed by hoverboards, including the findings and results of its internal investigation. The email\ndid not inform hoverboard purchasers that the reported safety issues included a risk of fire and\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 6\n\n\nexplosion. And the email did not inform hoverboard purchasers that Defendant had ceased all\nhoverboard sales worldwide.\n\n The December 12, 2015 email was sent to Plaintiff Megan Fox. Plaintiff does not recall\nreceiving or reading the email. However, Plaintiff “had a habit” of reading emails sent to her\nemail address. (RE 161, PageID # 2210.) Plaintiff testified that she would not have let the\nhoverboard enter or remain in her home had she known that there had been 17 complaints of\nhoverboard fires or explosions in the United States that involved hoverboards purchased on\nDefendant’s marketplace, that Defendant anticipated additional complaints during the holiday\nseason in late December, or that Defendant had ceased all hoverboard sales worldwide.\n\n On January 9, 2015, Matthew Fox was playing with his new hoverboard while the rest of\nthe family was away from the home. Eventually, he stopped playing with the hoverboard and\nleft it on the first floor of the family’s two-story home. When Hailey Fox returned to the home,\nshe sent a text message to Plaintiff Megan Fox stating that she thought that someone had broken\ninto the home. Plaintiff Megan Fox alerted Plaintiff Charles Brian Fox of Hailey’s message, and\nhe drove home immediately, accompanied by Sarah and Rebecca Fox. By the time he arrived,\nMatthew and Hailey had hidden on the second floor of the home, fearing an intruder.\n\n When Plaintiff Charles Brian Fox arrived, the home was on fire, and Matthew and Hailey\nwere trapped on the second floor. He frantically searched for a way to enter the home, but the\nintensity of the fire prevented him from getting inside. He then heard Hailey banging on a\nsecond-floor window. At his instruction, Hailey broke the window, and jumped out.\nHe attempted to break her fall. He then heard Matthew banging on another second-floor\nwindow. Again, at his instruction, Matthew broke the window, and jumped out. Plaintiff Megan\nFox arrived shortly thereafter to find that everyone had escaped from the home, but that the fire\nwas still raging. As a result of the fire, the members of the Fox family suffered various physical\nand psychological injuries, and their home, along with virtually all of the personal property\ncontained therein, was destroyed.\n\n It is undisputed that the fire was caused by the lithium-ion battery in Plaintiff Megan\nFox’s hoverboard.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 7\n\n\n Procedural History\n\n Plaintiffs filed a complaint in the United States District Court for the Middle District of\nTennessee against Defendant and W2M.4 Plaintiffs’ complaint alleges that Defendant (1) sold\nPlaintiff Megan Fox a defective or unreasonably dangerous product, in violation of the\nTennessee Products Liability Act of 1978, Tenn. Code Ann. § 29-28-101 et seq., (2) breached a\nduty to warn Plaintiff Megan Fox about the defective or unreasonably dangerous nature of that\nproduct, in violation of Tennessee tort law, and (3) caused Plaintiff Megan Fox confusion or\nmisunderstanding about the source of that product, in violation of the Tennessee Consumer\nProtection Act of 1977, Tenn. Code Ann. § 47-18-101 et seq. (Id.) Following discovery,\nPlaintiffs filed a motion for partial summary judgment, and Defendant filed a motion for\nsummary judgment. On May 30, 2018, the district court granted Defendant’s motion for\nsummary judgment, reasoning that all of Plaintiffs’ claims failed as a matter of law.\n\n This appeal followed.\n\n DISCUSSION\n\n I. Standard of Review and Applicable Law\n\n We review a district court’s grant of summary judgment de novo, “drawing all reasonable\ninferences in favor of the nonmoving party.” Rocheleau v. Elder Living Const., LLC, 814 F.3d\n398, 400 (6th Cir. 2016) (quotation omitted). Summary judgment is appropriate where the\nmovant demonstrates that there is “no genuine dispute as to any material fact and the movant is\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Accordingly, summary judgment\nmust be entered where the nonmovant “fails to make a showing sufficient to establish the\nexistence of an element essential to that party’s case, and on which that party will bear the\nburden of proof at trial.” United States v. Storey, 640 F.3d 739, 743 (6th Cir. 2011) (quotation\nomitted).\n\n\n\n\n 4Plaintiffs have since obtained a default judgment against W2M.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 8\n\n\n Where, as here, our subject matter jurisdiction is based on diversity of citizenship, we\napply the substantive law of the forum state. Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604,\n607 (6th Cir. 2012). “Faithful application of a state’s law requires federal courts to ‘anticipate\nhow the relevant state’s highest court would rule in the case.’” Id. (quotation omitted). Thus, we\nare bound by controlling decisions of that court, and in the absence of decisions addressing the\nissue, must predict how that court would rule by looking to “all available data.” Id. (quotation\nomitted). However, this Court has often warned that “[f]ederal courts should be ‘extremely\ncautious about adopting substantive innovation in state law.’” Id. at 608 (quotation omitted).\n\n II. Analysis\n\n A. Plaintiffs’ Tennessee Products Liability Act (“TPLA”) Claim\n\n The TPLA provides that a “manufacturer” or “seller” of a product may be liable for\npersonal injury or property damage caused by that product if it was “in a defective condition or\nunreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code\nAnn. § 29-28-105(a). “Manufacturer” is defined as “the designer, fabricator, producer,\ncompounder, processor, or assembler of [a] product or its component parts.” Id. § 29-28-102(4).\nAnd “seller” is defined as “any individual or entity engaged in the business of selling a product,”\nincluding a “retailer,” “wholesaler,” or “distributor,” as well as a “lessor” engaged in the\nbusiness of leasing a product and a “bailor” engaged in the business of bailment of a product. Id.\n§ 29-28-102(7).\n\n At issue in this case is whether Defendant is a “seller” of Plaintiff Megan Fox’s\nhoverboard. Defendant argues that it “never had title to the hoverboard” and thus could not sell\nit. (Brief for Appellee at 16.) Plaintiffs argue that Defendant “controlled all aspects of the\n[hoverboard] sales transaction” and thus effectively sold it. (Brief for Appellants at 20.)\nWe begin, as we must, with “the natural and ordinary meaning of the language used.” Penley v.\nHonda Motor Co., 31 S.W.3d 181, 185 (Tenn. 2000) (quotation omitted).\n\n The TPLA’s definition of “seller” hinges on an individual’s or entity’s engagement “in\nthe business of selling.” Tenn. Code Ann. § 29-28-102(7). Parsing this phrase, to “sell”\ngenerally means to dispose of property “by sale.” See Sell, Black’s Law Dictionary (4th ed.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 9\n\n\n1968); Sell, Black’s Law Dictionary (10th ed. 2014). A “sale” is generally a transfer of title to or\npossession of property for an agreed upon price, or the agreement by which such a transfer takes\nplace. See Sale, Black’s Law Dictionary (4th ed. 1968); Sale, Black’s Law Dictionary (10th ed.\n2014). And to be engaged “in the business of” something generally means to be regularly\nengaged in it for livelihood or gain. See Business, Black’s Law Dictionary (4th ed. 1968);\nBusiness, Black’s Law Dictionary (10th ed. 2014); see also Rollins v. Cherokee Warehouses,\nInc., 635 F. Supp. 136, 138 (E.D. Tenn. 1986).\n\n Accordingly, one possible construction of the TPLA’s definition of “seller” is any\nindividual or entity regularly engaged in transferring title to a product for an agreed upon price,\nfor livelihood or gain. Defendant argues that we should adopt this construction because it\naccords with the Uniform Commercial Code, which Tennessee has adopted in relevant part.\nSpecifically, the Uniform Commercial Code defines “seller” as “a person who sells or contracts\nto sell goods,” and defines “sale” as “the passing of title from the seller to the buyer for a price.”\nTenn. Code Ann. §§ 47-2-103(1)(d), 47-2-106(1).\n\n However, we are not persuaded that the Tennessee legislature intended such a limited\nconstruction. See Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 2017) (“The cardinal rule of\nstatutory construction is to effectuate legislative intent, with all rules of construction being aides\nto that end.”). Significantly, the TPLA’s definition of “seller” expressly includes a “lessor” and\na “bailor,” neither of which necessarily transfers title to the products they lease or bail. See, e.g.,\nBailment, Black’s Law Dictionary (10th ed. 2014) (“Unlike a sale or gift of personal property, a\nbailment involves a change in possession but not in title.”). Thus, this construction would result\nin a definition of “seller” that excludes examples that the legislature explicitly included. And\n“[a]n important canon of statutory construction counsels that a statute . . . should be interpreted\nto preclude any part from being ‘inoperative, superfluous, void, or insignificant.’” Baker v.\nState, 417 S.W.3d 428, 439 n.11 (Tenn. 2013) (quotation omitted).\n\n The Tennessee Supreme Court’s decision in Baker v. Promark Products West, Inc.,\n692 S.W.2d 844 (Tenn. 1985) is instructive. In that case, the court held that a TPLA claim for\nbreach of implied warranty can be maintained against a lessor or bailor of personal property,\nnotwithstanding the fact that the Uniform Commercial Code provided that the warranty was\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 10\n\n\nimplied only in certain contracts for “sale.” Id. at 847. The court reasoned that the legislature\n“carefully considered who was to be a ‘seller’ in a products liability action,” and that the\nlegislature’s inclusion of “lessor” and “bailor” in the TPLA’s definition of “seller” demonstrated\nits intent “to extend protection for products liability injuries beyond the technical buyer-seller\nrelationship encompassed by a strict interpretation of the Uniform Commercial Code.” Id.\n(emphasis added). Accordingly, the court stated that in a products liability action for breach of\nimplied warranty, no actual “sale” need occur, whereas “if the action is not a products liability\naction . . . an actual ‘sale’ [is] required.” Id.\n\n This Court’s decision in Winningham v. Ciba-Geigy Corp., 156 F.3d 1234 (6th Cir. July\n14, 1998) (Table) is similarly instructive. In that case, this Court held that the TPLA’s statute of\nrepose applies to bailments, notwithstanding the fact that it runs from the date on which the\nproduct was “purchased.” Id. at *3. This Court reasoned that the legislature’s inclusion of\n“lessor” and “bailor” in the TPLA’s definition of “seller” demonstrated its intent that the statute\nof repose apply regardless of the occurrence of an actual sale. Id. Accordingly, this Court stated\nthat the plaintiffs’ argument “that no title passed . . . and thus no sale occurred . . . ignore[d] the\ndefinition of the term ‘seller’ in the TPLA.” Id. Thus, it would seem that the TPLA’s definition\nof “seller” is not limited to any individual or entity regularly engaged in transferring title to a\nproduct for an agreed upon price, for livelihood or gain.\n\n Another possible construction of the TPLA’s definition of “seller” is any individual or\nentity regularly engaged in exercising sufficient control over a product in connection with its\nsale, lease, or bailment, for livelihood or gain. Plaintiffs argue that we should adopt this\nconstruction because it accords with the text of the TPLA and Tennessee case law.\n\n Plaintiffs’ argument is persuasive. Unlike the construction urged by Defendant, this\nconstruction is broad enough to include all of the TPLA’s examples of a “seller”—a “retailer,” a\n“wholesaler,” a “distributor,” a “lessor,” and a “bailor,” Tenn. Code Ann. § 29-28-102(7)—each\nof which exercises a significant degree of control over the products they sell, lease, or bail. This\nconstruction also accords with Tenn. Code. Ann. § 29-28-105(a), the “key operative provision”\nof the TPLA, Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 689 (Tenn. 1995), and with\nTennessee case law. As stated above, § 29-28-105(a) provides that the liability of a\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 11\n\n\n“manufacturer” or “seller” is contingent upon whether the product was “in a defective condition\nor unreasonably dangerous at the time it left the control of the manufacturer or seller.”\n(emphasis added). And in Baker, the Tennessee Supreme Court explained that a TPLA claim for\nbreach of implied warranty can be maintained “[r]egardless of whether title passes in the\ntransaction” because “one party to the relationship is in a better position to know and control the\ncondition of the chattel.” 692 S.W.2d at 848 (emphasis added). Thus, both the legislature and\nTennessee Supreme Court have indicated that control is an important consideration underlying\nproducts liability law.\n\n Moreover, this construction is consistent with the remedial purpose of the TPLA.\n“A primary purpose of [the TPLA] is ‘to ensure that an injured consumer may maintain a strict\nliability action against whomever is most likely to compensate him for his injuries.’” Owens v.\nTruckstops of Am., 915 S.W.2d 420, 432 (Tenn. 1996) (quotation omitted). In furtherance of that\npurpose, the TPLA plainly provides that where the manufacturer and others in the chain of\ndistribution are “not amenable to service of process,” “insolvent,” or unknown, “an injured\nconsumer can assert liability against [a] ‘faultless’ seller. Id. Otherwise, “the injured consumer\nwould be left with no remedy.” Id.; see also Baker, 692 S.W.2d at 848.\n\n In this case, Defendant is clearly the entity “most likely to compensate” Plaintiffs for\ntheir injuries. See Owens, 915 S.W.2d at 432. The third-party seller and manufacturer of\nPlaintiff Megan Fox’s hoverboard, to whom Plaintiffs might otherwise look for compensation,\nappear to be judgment-proof and unknown respectively. And Defendant certainly has the\ncapacity to compensate Plaintiffs, as it accounts for 49.1% of all online retail spending in the\nUnited States, nearly more than all other online retailers combined, and generated $141.92\nbillion in product sales in 2018, including $13.38 billion in fees paid by third-party sellers in the\nfourth quarter alone.5 The combination of these two facts—Defendant’s ability to facilitate the\nsale of goods by sellers who are functionally outside the reach of U.S. courts, and its online retail\n\n\n 5See Ingrid Lunden, Amazon’s Share Of The US E-Commerce Market Is Now 49%, Or 5% Of All Retail\nSpend, TechCrunch (July 13, 2018), https://techcrunch.com/2018/07/13/amazons-share-of-the-us-e-commerce-\nmarket-is-now-49-or-5-of-all-retail-spend/ (last visited March 29, 2019); Allison Enright, Amazon’s Product Sales\nClimb Nearly 20% in 2018, But Only 8% In Q4, Digital Commerce 360 (Jan. 31, 2019),\nhttps://www.digitalcommerce360.com/article/amazon-sales/ (last visited March 29, 2019).\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 12\n\n\ndominance—often drastically hinders the ability of consumers injured by defective or\nunreasonably dangerous products to receive compensation for their injuries.\n\n Defendant also has the capability to spur the manufacturing and sale of safer products in\nthe future, which is a primary purpose behind the doctrine of products liability in general. See\nOwens, 915 S.W.2d at 432; Baker, 692 S.W.2d at 847. That capability can indeed be seen in\nseveral of the facts of this case. Defendant required W2M to sign its BSA, which imposed\nvarious restrictions on W2M’s ability to sell products on Defendant’s marketplace. Defendant\nattempted to demand safety compliance documentation from third-party hoverboard sellers\nfollowing initial reports of hoverboard fires and explosions. And Defendant eventually ceased\nall hoverboard sales on its marketplace worldwide.\n\n Lastly, we note that courts applying the products liability law of other states have also\nconsidered or adopted constructions of “seller” or other similar terms that hinge on the degree of\ncontrol exercised over a product. See, e.g., Erie Ins. Co. v. Amazon.com, Inc., _ F.3d _, No. 18-\n1198, 2019 WL 2195146, at *3 (4th Cir. May 22, 2019); Garber v. Amazon.com, Inc., _ F. Supp.\n3d _, No.17-C-673, 2019 WL 1437877, at *7 (N.D. Ill. Mar. 31, 2019); Carpenter v.\nAmazon.com, Inc., No. 17-03221-JST, 2019 WL 1259158, at *4 (N.D. Cal. Mar. 19, 2019);\nEberhart v. Amazon.com, Inc., 325 F. Supp. 3d 393, 398–99 (S.D.N.Y. 2018); Allstate N.J. Ins.\nCo. v. Amazon.com, Inc., No. 17-2738, 2018 WL 3546197, at *7–10 (D.N.J. July 24, 2018);\nOberdorf v. Amazon.com, Inc., 295 F. Supp. 3d 496, 498 (M.D. Pa. 2017); see also Stiner v.\nAmazon.com, Inc., 120 N.E.3d 885, 895 (Ohio Ct. App. 2019).\n\n Thus, we hold that the TPLA’s definition of “seller” means any individual regularly\nengaged in exercising sufficient control over a product in connection with its sale, lease, or\nbailment, for livelihood or gain. We turn next to an application of that definition to the facts of\nthis case.\n\n Plaintiffs argue that Defendant exercised sufficient control over Plaintiff Megan Fox’s\nhoverboard because Defendant (1) stored and shipped the hoverboard, (2) initially obtained the\npayment made in exchange for the hoverboard, (3) retained the payment made in exchange for\nthe hoverboard, and (4) handled all communications with Plaintiff Megan Fox regarding the\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 13\n\n\nhoverboard. However, Plaintiffs’ first and third assertions are belied by the record. Defendant’s\nrecords demonstrate both that the hoverboard was “[f]ulfilled by: W-Deals,” (RE 120, PageID\n# 1566.), and that Defendant remitted approximately $1.4 million in customer payments to W2M\nbetween January 1, 2015 and December 31, 2016, a time period which includes Plaintiff Megan\nFox’s hoverboard purchase. Plaintiffs ask us to infer that stray pieces of circumstantial evidence\ncast doubt on the accuracy of these records, and stress that this case is at the summary judgment\nstage; but summary judgment “does not allow, much less require that we draw strained and\nunreasonable inferences in favor of the nonmovant.” Audi AG v. D’Amato, 469 F.3d 534, 545\n(6th Cir. 2006) (quotation omitted).\n\n What remains—Plaintiff’s second and fourth assertions—is not a sufficient exercise of\ncontrol to be deemed a “seller” under the TPLA. In contrast to those assertions, Defendant did\nnot choose to offer the hoverboard for sale, did not set the price of the hoverboard, and did not\nmake any representations about the safety or specifications of the hoverboard on its marketplace.\nWe also note that courts applying the products liability law of other states to comparable facts\nhave reached similar conclusions. See, e.g., Garber, 2019 WL 1437877, at *7, *10; Carpenter,\n2019 WL 1259158, at *5; Stiner, 120 N.E.3d at 895. At bottom, we are not convinced, on the\nrecord before us, that Defendant exercised sufficient control over Plaintiff Megan Fox’s\nhoverboard to be deemed a “seller” of the hoverboard under the TPLA. Thus, we hold that there\nis no genuine dispute of material fact regarding Plaintiffs’ TPLA claim, and affirm the district\ncourt’s dismissal.6\n\n B. Plaintiffs’ Tennessee Tort Law Claim\n\n Tennessee tort law provides that an individual can assume a duty to act, and thereby\nbecome subject to the duty of acting reasonably. Grogan v. Uggla, 535 S.W.3d 864, 871 (Tenn.\n2017). In evaluating whether such a duty has been assumed, Tennessee courts look to the\nRestatement (Second) of Torts §§ 323, 324A. Id. at 873; see also Downs v. Bush, 263 S.W.3d\n812, 820 (Tenn. 2008). Section 323 states:\n\n\n 6Accordingly, we need not decide whether the Communications Decency Act, 47 U.S.C § 230, grants\nDefendant immunity from Plaintiffs’ TPLA claim.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 14\n\n\n One who undertakes, gratuitously or for consideration, to render services to\n another which he should recognize as necessary for the protection of the other’s\n person or things, is subject to the liability to the other for physical harm resulting\n from his failure to exercise reasonable care to perform his undertaking, if\n (a) his failure to exercise reasonable care increases the risk of such harm, or\n (b) the harm is suffered because of the other’s reliance upon the undertaking.\n\nRestatement (Second) of Torts § 323 (emphasis added). And § 324A states:\n\n One who undertakes, gratuitously or for consideration, to render services to\n another which he should recognize as necessary for the protection of a third\n person or his things, is subject to liability to the third person for physical harm\n resulting from his failure to exercise reasonable care to protect his undertaking if\n (a) his failure to exercise reasonable care increases the risk of such harm, or\n (b) he has undertaken to perform a duty owed by the other to the third person, or\n (c) the harm is suffered because of reliance of the other or the third person upon\n the undertaking.\n\nRestatement (Second) of Torts § 324A (emphasis added).\n\n Evidently, the rule stated in § 324A “parallels the one stated in § 323.” Grogan,\n535 S.W.3d at 873 n.10 (quotation omitted). However, the emphasized references in the\nRestatement highlight a crucial difference. Section 323 governs liability to the person to whom\nthe defendant undertook to render services, while § 324A governs liability to persons other than\nthe person to whom the defendant undertook to render services. Id.\n\n In this case, Plaintiffs allege that Defendant gratuitously undertook to warn Plaintiff\nMegan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015\nemail, that Defendant was negligent in that undertaking, and that Defendant’s negligence caused\nthem harm. The district court held that § 324A was inapplicable to Plaintiffs’ claims because it\n“contemplate[d] liability to third parties.” (RE 161, PageID # 2221–22.) And the district court\nalso held that Plaintiffs forfeited any § 323 claim. The first holding was erroneous, and the\nsecond we need not address.\n\n By its plain terms, § 324A governs liability to persons other than the person to whom the\ndefendant undertook to render services. Grogan 535 S.W.3d at 872–73 & n.10. For instance, in\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 15\n\n\nBiscan v. Brown, the plaintiff argued that the defendant undertook to monitor minors at a party at\nwhich alcohol was served, and that the defendant’s negligent monitoring caused physical harm to\nthe plaintiff—a motorist who was injured in a car accident with an intoxicated minor who had\nattended the party. 160 S.W.3d 462, 483 (Tenn. 2005). Similarly, in this case, Plaintiffs argue\nthat Defendant undertook to warn Plaintiff Megan Fox when it sent her the December 12, 2015\nemail, and that Defendant’s negligent warning caused physical harm to the other members of her\nfamily. Accordingly, while Defendant’s liability to Plaintiff Megan Fox is properly governed by\n§ 323, Defendant’s liability to the other members of her family is properly governed by § 324A.7\nSee Grogan, 535 S.W.3d at 872–73. Thus, the district court’s holding that § 324A was\ninapplicable to Plaintiffs’ Tennessee tort law claim was erroneous.\n\n Applying § 324A to the facts of this case, Defendant chose to send the December 12,\n2015 email to Plaintiff Megan Fox, and in doing so plainly sought to warn her of the dangers\nposed by the hoverboard. The body of the email stated: “There have been news reports of safety\nissues involving products like the one you purchased that contain rechargeable lithium-ion\nbatteries. As a precaution, we want to share with you some additional information about lithium-\nion batteries and safety tips for using products that contain them.” (RE 117-17, PageID # 1402.)\nAnd Defendant just as plainly recognized the warning as necessary for the protection of a third\nparty or his things. The body of the email also specifically requested that the recipient “pass\nalong this information” to the proper person if the hoverboard was purchased for someone else.\n(Id.) Thus, we hold that Defendant assumed a duty to warn Plaintiff Megan Fox of the dangers\nposed by the hoverboard when it sent her the December 12, 2015 email. See Grogan,\n535 S.W.3d at 874 (“[T]he question of whether one has assumed a duty to act is . . . a question of\nlaw.”) (alterations in original) (quotation omitted).\n\n Given that Defendant assumed a duty to act, there remain genuine issues of material fact\nregarding whether Defendant breached that duty and whether any breach caused Plaintiffs\nphysical harm. For instance, there is a genuine issue of material fact regarding whether\nDefendant’s failure to include certain information in the December 12, 2015 email amounted to\n\n 7Plaintiff Megan Fox does not allege that she suffered any physical harm, therefore we need not decide\nwhether she forfeited her § 323 claim, for it fails as a matter of law. See Grogan, 535 S.W.3d at 874.\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 16\n\n\nnegligence. The email did not inform hoverboard purchasers of any of the actions Defendant had\ntaken to evaluate the dangers posed by hoverboard, including the findings and results of its\ninternal investigation. The email did not inform hoverboard purchasers that the reported safety\nissues included a risk of fire or explosion. And the email did not inform hoverboard purchasers\nthat Defendant had ceased all hoverboard sales worldwide.\n\n Additionally, there is a genuine issue of material fact regarding whether Plaintiff Megan\nFox read the December 12, 2015 email, and thereby could have acted in reliance on it.\nSuch reliance is required by subsection (c) of § 324A, one of three subsections under which\nPlaintiffs’ claim may proceed. Though Plaintiff has no specific recollection of reading the email,\nshe “had a habit” of reading emails sent to her email address. (RE 161, PageID # 2210.)\nPlaintiff also testified that she would not have let the hoverboard enter or remain in her home had\nshe known, among other things, that there had been 17 complaints of hoverboard fires or\nexplosions in the United States that involved hoverboards purchased on Defendant’s\nmarketplace, that Defendant anticipated additional complaints, particularly during the holiday\nseason in late December, or that Defendant had ceased all hoverboard sales worldwide.\n\n Thus, we hold that there are genuine disputes of material fact regarding Plaintiffs’\nTennessee tort law claim, and reverse the district court’s dismissal.8\n\n C. Plaintiffs’ Tennessee Consumer Protection Act (“TCPA”) Claim\n\n The TCPA prohibits “[u]nfair or deceptive acts or practices affecting the conduct of any\ntrade or commence,” including “[c]ausing likelihood of confusion or of misunderstanding as to\nthe source, sponsorship, approval, or certification of goods or services.” Tenn. Code Ann. § 47-\n18-104(a), (b)(2). In this case, Plaintiffs allege that Defendant’s policy allowing third-party\nsellers to choose “friendly names” by which they would be identified as a seller of their products\ncaused a likelihood of confusion or misunderstanding as to the source of the hoverboard.\nSpecifically, Plaintiffs allege that Defendant’s policy deceptively caused Plaintiff Megan Fox to\n\n\n 8Defendant concedes that the Communications Decency Act, 47 U.S.C § 230, does not grant it immunity\nfrom Plaintiffs’ Tennessee tort law claim. (RE 120, PageID # 1583.) (“All of Plaintiffs’ claims except those arising\nfrom the December 12 email require treating Amazon as a publisher of W-Deals’ offer.”).\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 17\n\n\nbelieve that Defendant owned the hoverboard, and that she was purchasing the hoverboard from\nDefendant.\n\n The district court held that Plaintiffs did not “demonstrate a sufficient causal link” to state\ntheir TCPA claim. (RE 161, PageID # 2227.) On appeal, Plaintiffs argue (1) that they did\ndemonstrate a sufficient causal link, and (2) that the district court erroneously granted summary\njudgment on grounds not briefed by the parties. Defendant argues that the district court properly\ndetermined that Plaintiffs did not demonstrate a sufficient causal link.\n\n In order to prevail on a claim under the TCPA, “the alleged unfair or deceptive act or\npractice must in fact cause the damages of which the plaintiff complains.” White v. Early,\n211 S.W.3d 723, 743 (Tenn. Ct. App. 2006). Accordingly, Plaintiffs must demonstrate that\nPlaintiff Megan Fox would not have purchased the hoverboard but for W2M’s choice and use of\nthe “friendly names” “W-Deals” and “-DEAL-.” Plaintiffs rely solely on Plaintiff Megan Fox’s\naffidavit to satisfy this element of their TCPA claim.\n\n Plaintiff’s affidavit states that she “do[es] not recall noticing the name ‘-DEAL-’ as the\nseller of the hoverboard.” (RE 146-3, PageID # 1942.) While it also states that “even if [she]\nhad noticed the name ‘-DEAL-’ as the ‘[s]eller’” she would not have “recognized or understood\nthose names to refer to a third-party seller,” that statement does not demonstrate the requisite\ncausal link. It does not establish that but for W2M’s choice and use of the “friendly names” “W-\nDeals” and “-DEAL-” Plaintiff would not have purchased the hoverboard. See Hamlin v. Trans-\nDapt of Cal., Inc., 584 F. Supp. 2d 1050, 1058 (M.D. Tenn. 2008) (granting judgment as a matter\nof law on a TCPA claim because “there [was] no indication that [the plaintiff’s] loss was caused\nby . . . reliance on a false impression” created by the defendant).\n\n Plaintiffs also argue that the district court improperly granted summary judgment on\ncausation grounds because causation was not briefed by the parties. See Smith v. Perkins Bd. of\nEduc., 708 F.3d 821, 828 (6th Cir. 2013). However, Defendant asserted in support of its motion\nfor summary judgment that Plaintiffs “d[id] not tie any Amazon conduct to any acts or practices\ndeclared unlawful by Section 47-18-104(b) of the TCPA.” (RE 120, PageID # 1579.) This\n\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 18\n\n\nassertion was sufficient to put Plaintiffs “on notice that [they] had to muster the necessary facts\nto withstand summary judgment” on causation grounds. Smith, 708 F.3d at 829.\n\n Thus, we hold that there is no genuine issue of material fact regarding Plaintiffs’ TCPA\nclaim, and affirm the district court’s dismissal.9\n\n CONCLUSION\n\n For the reasons set forth above, we AFFIRM the district court’s summary judgment\norder with respect to Plaintiffs’ TPLA and TCPA claims, and REVERSE the district court’s\nsummary judgment order with respect to Plaintiffs’ Tennessee tort law claim.\n\n\n\n\n 9Accordingly, we need not decide whether the Communications Decency Act, 47 U.S.C. § 230, grants\nDefendant immunity from Plaintiffs’ TCPA claim.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Charles Brian FOX and Megan Fox, Individually and as Parents and Next Friends of Hailey Fox; Matthew Fox; Rebecca Fox ; Sarah Fox, Plaintiffs-Appellants, v. AMAZON.COM, INC., Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0123p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n CHARLES BRIAN FOX and MEGAN FOX, Individually ┐\\n and as Parents and Next Friends of HAILEY FOX; │\\n MATTHEW FOX; REBECCA FOX; SARAH FOX, │\\n Plaintiffs-Appellants, │\\n │\\n > No. 18-5661\\n v. │\\n │\\n │\\n AMAZON.COM, INC., │\\n Defendant-Appellee. │\\n │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Middle District of Tennessee at Nashville.\\n No. 3:16-cv-03013—William Lynn Campbell, Jr., District Judge.\\n\\n Argued: March 14, 2019\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge. *\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee, for\\nAppellants. Brendan Murphy, PERKINS COIE LLP, Seattle, Washington, for Appellee.\\nON BRIEF: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee,\\nMark E. Spear, Kaylin L. Hart, SPEAR, SPEAR & HAMBY, P.C., Mobile, Alabama, Donald\\nCapparella, DODSON PARKER BEHM & CAPPARELLA, P.C., Nashville, Tennessee, for\\nAppellants. Brendan Murphy, Eric D. Miller, Rachel Constantino-Wallace, PERKINS COIE\\nLLP, Seattle, Washington, Lela M. Hollabaugh, Scott Burnett Smith, BRADLEY ARANT\\nBOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee.\\n\\n *The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by\\ndesignation.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 2\\n\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n CLAY, Circuit Judge. Plaintiffs Charles Brian and Megan Fox, individually and as\\nparents and next friends of their minor children Hailey, Matthew, Rebecca, and Sarah Fox,\\nappeal the district court’s May 30, 2018 order granting summary judgment in favor of Defendant\\nAmazon.com, Inc. Plaintiffs’ complaint alleges that Defendant (1) sold Plaintiff Megan Fox a\\ndefective or unreasonably dangerous product, in violation of the Tennessee Products Liability\\nAct of 1978, Tenn. Code Ann. § 29-28-101 et seq., (2) breached a duty to warn Plaintiff Megan\\nFox about the defective or unreasonably dangerous nature of that product, in violation of\\nTennessee tort law, and (3) caused Plaintiff Megan Fox confusion or misunderstanding about the\\nsource of that product, in violation of the Tennessee Consumer Protection Act of 1977, Tenn.\\nCode Ann. § 47-18-101 et seq. For the reasons set forth below, we AFFIRM IN PART and\\nREVERSE IN PART the district court’s summary judgment order.\\n\\n BACKGROUND\\n\\n Factual Background\\n\\n Plaintiffs are a family of six that resides in Davidson County, Tennessee. Defendant is a\\ncorporation that operates a worldwide online marketplace. Defendant’s marketplace facilitates\\nthe sale of products from sellers, including both Defendant and third-party sellers, to buyers.1\\nW2M Trading Corp. (“W2M”) is a corporation that at one time was a third-party seller that\\nutilized Defendant’s marketplace to sell hoverboards.\\n\\n\\n\\n\\n 1There has been significant disagreement over how to characterize sellers, other than Defendant, that utilize\\nDefendant’s marketplace. Plaintiffs characterize them as “co-sellers.” Defendant characterizes them as “third-party\\nsellers.” And the district court characterized them as “sellers.” We refer to such sellers as “third-party sellers”\\nbecause that term accurately and appropriately reflects the fact that they are sellers, other than Defendant, that\\nutilize Defendant’s marketplace. See Hart v. Amazon.com, Inc., 845 F.3d 802, 803 (7th Cir. 2017) (referring to\\n“third-party sellers”); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 234 n.4 (2d Cir. 2016) (referring to “third-party\\nsellers”); Multi Time Machine, Inc. v. Amazon.com, Inc., 804 F.3d 930, 933 (8th Cir. 2015) (referring to “third-party\\nsellers”).\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 3\\n\\n\\n In November 2015, Defendant’s marketplace contained a webpage offering for sale a\\nFITURBO F1 hoverboard. The webpage contained, among other things, the purchase price,\\n$274.79, and a detailed product description, including that the hoverboard was equipped with an\\n“original Samsung advanced battery pack.” (RE 150, PageID # 2117.)2 Defendant did not set\\nthe purchase price or develop any of the product-related content that appeared on the webpage.\\n\\n On November 3, 2015, Plaintiff Megan Fox accessed the webpage and purchased a\\nFITURBO F1 hoverboard. At that time, Plaintiff believed that Defendant owned the hoverboard,\\nand that she purchased the hoverboard from Defendant. However, Defendant’s records show\\nthat W2M owned the hoverboard, and that Plaintiff purchased the hoverboard from W2M. For\\ninstance, Plaintiff’s order history lists the hoverboard’s “[s]eller of record” as “W2M Trading\\nCorp.”3 (RE 120, PageID # 1566.) Neither Defendant nor W2M manufactured the hoverboard;\\nthe manufacturer remains unknown.\\n\\n Plaintiff Megan Fox paid the purchase price to Defendant, and the purchase receipt was\\nsent from “amazon.com” to Plaintiff’s email address. (RE 161, PageID # 2205.) The receipt\\ncontained various details about the purchase, including the order date, the shipment date, the\\nshipping address, and the billing address. The receipt also contained the phrase, “Sold\\nby: -DEAL-.” (Id.)\\n\\n Defendant operates a program known as “Fulfillment by Amazon” (“FBA”), through\\nwhich third-party sellers can opt to use storage and shipping services offered by Defendant. If a\\nthird-party seller participates in FBA, its products are stored in an Amazon Fulfillment Center\\nuntil they are purchased, at which point Defendant ships the products to the buyers. Participants\\nin FBA pay a fee to Defendant for these services, but retain title to their products.\\n\\n The parties disagree over whether W2M participated in FBA, and accordingly over\\nwhether W2M or Defendant stored and shipped the hoverboard purchased by Plaintiff Megan\\n\\n 2Except as otherwise indicated, record citations refer to the record in district court action No. 16-cv-03013.\\n 3Plaintiff’s order history also states that the hoverboard was “[s]old by: W-Deals,” and that the “[s]eller\\nname” was “W-Deals.” (RE 120, PageID # 1566.) W2M chose the name “W-Deals,” as well as the\\nname “-DEAL-,” pursuant to Defendant’s policy permitting third-party sellers to choose “friendly names” by which\\nthey could be identified as a seller of their products. (RE 119-1, PageID # 1500.)\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 4\\n\\n\\nFox. Defendant’s records show that, in 2015, W2M participated in FBA for some of the\\nproducts it sold on Defendant’s marketplace. Additionally, the hoverboard purchased by\\nPlaintiff was shipped from China via Federal Express, arrived in an Amazon-labeled box, and its\\nAmazon Standard Identification Number (“ASIN”) was B00WGX04YM. And Defendant’s\\nrecords show that, in 2015, Defendant had Amazon Fulfillment Centers in China, shipped items\\nvia Federal Express in Amazon-labeled boxes, and stored a hoverboard with the ASIN\\nB00WGX04YM. However, Defendant’s records also show that multiple third-party sellers sold\\nhoverboards with the ASIN B00WGX04YM, and that Plaintiff’s hoverboard was “[f]ulfilled by:\\nW-Deals.” (RE 120, PageID # 1566.) Plaintiff received the hoverboard sometime between\\nNovember 10, 2015 and November 17, 2015.\\n\\n Defendant requires all third-party sellers that utilize its marketplace to sign Defendant’s\\nBusiness Solutions Agreement (“BSA”). The BSA provides in part that third-party sellers are\\nprohibited from direct communication with buyers. Rather, all communication with buyers\\ncomes from Defendant. The BSA also provides that Defendant retains initial control over\\ncustomer payments. Generally, customers pay Defendant, and Defendant then remits those\\npayments to third-party sellers every 14 days. However, Defendant retains the right to impose a\\n90-day hold on those payments.\\n\\n The parties disagree over whether Defendant remitted Plaintiff Megan Fox’s payment to\\nW2M. Defendant’s records show that from January 1, 2015 through December 31, 2016,\\nDefendant remitted approximately $1.4 million in customer payments to W2M. However,\\nDefendant’s records do not show that Plaintiff’s payment specifically was remitted to W2M.\\n\\n Sometime in November 2015, following news reports of hoverboard fires and explosions,\\nDefendant began a thorough internal investigation into the dangers posed by hoverboards. That\\ninvestigation identified at least 17 complaints of hoverboard fires or explosions in the United\\nStates that involved hoverboards purchased on Defendant’s marketplace. For instance, on\\nNovember 30, 2015, a customer sent an email to Defendant’s CEO, Jeff Bezos, informing Bezos\\nthat a hoverboard the customer had purchased had burst into flames while his daughter was\\nriding it.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 5\\n\\n\\n Based on the results of the investigation, Damon Jones, Defendant’s product safety\\nmanager, was concerned that the entire product category of hoverboards was “bad.” (RE 117-5,\\nPageID # 1265.) In his view, “there was no precedent for this kind of event in the product safety\\ncommunity,” in part because of the “widespread nature of the problem.” (Id. at PageID # 1264–\\n65.) On December 10, 2015, the results were presented to “a broad set of senior decision-\\nmakers” at Defendant. (Id. at PageID # 1258.) By that time, Damon Jones had removed his own\\nhoverboard from his home.\\n\\n On December 11, 2015, Defendant ceased all hoverboard sales worldwide. At that time,\\nDefendant knew that approximately 250,000 hoverboards had been sold on its marketplace in the\\nprevious 30 days. At that time, Defendant knew that approximately 25% of those hoverboards\\nhad not yet been delivered. Also at that time, Defendant knew that it was likely that a majority\\nof those hoverboards would remain unopened until the holiday season in late December. As a\\nresult, Defendant made “contingency plans” in anticipation of more fires and explosions,\\nincluding scheduling employees to work on December 26, 2015 in order to monitor news reports\\nand customer complaints about hoverboard fires and explosions. (RE 161, PageID # 2209.)\\n\\n On December 12, 2015, Defendant sent an email to hoverboard purchasers that\\nDefendant described as intended to be “non-alarmist” because it would likely be “headline\\nnews.” (Id. at PageID # 2210.) The subject line of the email stated: “Important Product Safety\\nNotification Regarding your Amazon.com Order.” (RE 117-17, PageID # 1402.) The body of\\nthe email stated: “There have been news reports of safety issues involving products like the one\\nyou purchased that contain rechargeable lithium-ion batteries. As a precaution, we want to share\\nwith you some additional information about lithium-ion batteries and safety tips for using\\nproducts that contain them.” (Id.) The email included a link for the “information and safety\\ntips,” a link “to initiate a return,” and a request that the recipient “pass along this information” to\\nthe proper person if the hoverboard was purchased for someone else. (Id.) The email did not\\ninform hoverboard purchasers of any of the actions Defendant had taken to evaluate the dangers\\nposed by hoverboards, including the findings and results of its internal investigation. The email\\ndid not inform hoverboard purchasers that the reported safety issues included a risk of fire and\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 6\\n\\n\\nexplosion. And the email did not inform hoverboard purchasers that Defendant had ceased all\\nhoverboard sales worldwide.\\n\\n The December 12, 2015 email was sent to Plaintiff Megan Fox. Plaintiff does not recall\\nreceiving or reading the email. However, Plaintiff “had a habit” of reading emails sent to her\\nemail address. (RE 161, PageID # 2210.) Plaintiff testified that she would not have let the\\nhoverboard enter or remain in her home had she known that there had been 17 complaints of\\nhoverboard fires or explosions in the United States that involved hoverboards purchased on\\nDefendant’s marketplace, that Defendant anticipated additional complaints during the holiday\\nseason in late December, or that Defendant had ceased all hoverboard sales worldwide.\\n\\n On January 9, 2015, Matthew Fox was playing with his new hoverboard while the rest of\\nthe family was away from the home. Eventually, he stopped playing with the hoverboard and\\nleft it on the first floor of the family’s two-story home. When Hailey Fox returned to the home,\\nshe sent a text message to Plaintiff Megan Fox stating that she thought that someone had broken\\ninto the home. Plaintiff Megan Fox alerted Plaintiff Charles Brian Fox of Hailey’s message, and\\nhe drove home immediately, accompanied by Sarah and Rebecca Fox. By the time he arrived,\\nMatthew and Hailey had hidden on the second floor of the home, fearing an intruder.\\n\\n When Plaintiff Charles Brian Fox arrived, the home was on fire, and Matthew and Hailey\\nwere trapped on the second floor. He frantically searched for a way to enter the home, but the\\nintensity of the fire prevented him from getting inside. He then heard Hailey banging on a\\nsecond-floor window. At his instruction, Hailey broke the window, and jumped out.\\nHe attempted to break her fall. He then heard Matthew banging on another second-floor\\nwindow. Again, at his instruction, Matthew broke the window, and jumped out. Plaintiff Megan\\nFox arrived shortly thereafter to find that everyone had escaped from the home, but that the fire\\nwas still raging. As a result of the fire, the members of the Fox family suffered various physical\\nand psychological injuries, and their home, along with virtually all of the personal property\\ncontained therein, was destroyed.\\n\\n It is undisputed that the fire was caused by the lithium-ion battery in Plaintiff Megan\\nFox’s hoverboard.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 7\\n\\n\\n Procedural History\\n\\n Plaintiffs filed a complaint in the United States District Court for the Middle District of\\nTennessee against Defendant and W2M.4 Plaintiffs’ complaint alleges that Defendant (1) sold\\nPlaintiff Megan Fox a defective or unreasonably dangerous product, in violation of the\\nTennessee Products Liability Act of 1978, Tenn. Code Ann. § 29-28-101 et seq., (2) breached a\\nduty to warn Plaintiff Megan Fox about the defective or unreasonably dangerous nature of that\\nproduct, in violation of Tennessee tort law, and (3) caused Plaintiff Megan Fox confusion or\\nmisunderstanding about the source of that product, in violation of the Tennessee Consumer\\nProtection Act of 1977, Tenn. Code Ann. § 47-18-101 et seq. (Id.) Following discovery,\\nPlaintiffs filed a motion for partial summary judgment, and Defendant filed a motion for\\nsummary judgment. On May 30, 2018, the district court granted Defendant’s motion for\\nsummary judgment, reasoning that all of Plaintiffs’ claims failed as a matter of law.\\n\\n This appeal followed.\\n\\n DISCUSSION\\n\\n I. Standard of Review and Applicable Law\\n\\n We review a district court’s grant of summary judgment de novo, “drawing all reasonable\\ninferences in favor of the nonmoving party.” Rocheleau v. Elder Living Const., LLC, 814 F.3d\\n398, 400 (6th Cir. 2016) (quotation omitted). Summary judgment is appropriate where the\\nmovant demonstrates that there is “no genuine dispute as to any material fact and the movant is\\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Accordingly, summary judgment\\nmust be entered where the nonmovant “fails to make a showing sufficient to establish the\\nexistence of an element essential to that party’s case, and on which that party will bear the\\nburden of proof at trial.” United States v. Storey, 640 F.3d 739, 743 (6th Cir. 2011) (quotation\\nomitted).\\n\\n\\n\\n\\n 4Plaintiffs have since obtained a default judgment against W2M.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 8\\n\\n\\n Where, as here, our subject matter jurisdiction is based on diversity of citizenship, we\\napply the substantive law of the forum state. Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604,\\n607 (6th Cir. 2012). “Faithful application of a state’s law requires federal courts to ‘anticipate\\nhow the relevant state’s highest court would rule in the case.’” Id. (quotation omitted). Thus, we\\nare bound by controlling decisions of that court, and in the absence of decisions addressing the\\nissue, must predict how that court would rule by looking to “all available data.” Id. (quotation\\nomitted). However, this Court has often warned that “[f]ederal courts should be ‘extremely\\ncautious about adopting substantive innovation in state law.’” Id. at 608 (quotation omitted).\\n\\n II. Analysis\\n\\n A. Plaintiffs’ Tennessee Products Liability Act (“TPLA”) Claim\\n\\n The TPLA provides that a “manufacturer” or “seller” of a product may be liable for\\npersonal injury or property damage caused by that product if it was “in a defective condition or\\nunreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code\\nAnn. § 29-28-105(a). “Manufacturer” is defined as “the designer, fabricator, producer,\\ncompounder, processor, or assembler of [a] product or its component parts.” Id. § 29-28-102(4).\\nAnd “seller” is defined as “any individual or entity engaged in the business of selling a product,”\\nincluding a “retailer,” “wholesaler,” or “distributor,” as well as a “lessor” engaged in the\\nbusiness of leasing a product and a “bailor” engaged in the business of bailment of a product. Id.\\n§ 29-28-102(7).\\n\\n At issue in this case is whether Defendant is a “seller” of Plaintiff Megan Fox’s\\nhoverboard. Defendant argues that it “never had title to the hoverboard” and thus could not sell\\nit. (Brief for Appellee at 16.) Plaintiffs argue that Defendant “controlled all aspects of the\\n[hoverboard] sales transaction” and thus effectively sold it. (Brief for Appellants at 20.)\\nWe begin, as we must, with “the natural and ordinary meaning of the language used.” Penley v.\\nHonda Motor Co., 31 S.W.3d 181, 185 (Tenn. 2000) (quotation omitted).\\n\\n The TPLA’s definition of “seller” hinges on an individual’s or entity’s engagement “in\\nthe business of selling.” Tenn. Code Ann. § 29-28-102(7). Parsing this phrase, to “sell”\\ngenerally means to dispose of property “by sale.” See Sell, Black’s Law Dictionary (4th ed.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 9\\n\\n\\n1968); Sell, Black’s Law Dictionary (10th ed. 2014). A “sale” is generally a transfer of title to or\\npossession of property for an agreed upon price, or the agreement by which such a transfer takes\\nplace. See Sale, Black’s Law Dictionary (4th ed. 1968); Sale, Black’s Law Dictionary (10th ed.\\n2014). And to be engaged “in the business of” something generally means to be regularly\\nengaged in it for livelihood or gain. See Business, Black’s Law Dictionary (4th ed. 1968);\\nBusiness, Black’s Law Dictionary (10th ed. 2014); see also Rollins v. Cherokee Warehouses,\\nInc., 635 F. Supp. 136, 138 (E.D. Tenn. 1986).\\n\\n Accordingly, one possible construction of the TPLA’s definition of “seller” is any\\nindividual or entity regularly engaged in transferring title to a product for an agreed upon price,\\nfor livelihood or gain. Defendant argues that we should adopt this construction because it\\naccords with the Uniform Commercial Code, which Tennessee has adopted in relevant part.\\nSpecifically, the Uniform Commercial Code defines “seller” as “a person who sells or contracts\\nto sell goods,” and defines “sale” as “the passing of title from the seller to the buyer for a price.”\\nTenn. Code Ann. §§ 47-2-103(1)(d), 47-2-106(1).\\n\\n However, we are not persuaded that the Tennessee legislature intended such a limited\\nconstruction. See Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 2017) (“The cardinal rule of\\nstatutory construction is to effectuate legislative intent, with all rules of construction being aides\\nto that end.”). Significantly, the TPLA’s definition of “seller” expressly includes a “lessor” and\\na “bailor,” neither of which necessarily transfers title to the products they lease or bail. See, e.g.,\\nBailment, Black’s Law Dictionary (10th ed. 2014) (“Unlike a sale or gift of personal property, a\\nbailment involves a change in possession but not in title.”). Thus, this construction would result\\nin a definition of “seller” that excludes examples that the legislature explicitly included. And\\n“[a]n important canon of statutory construction counsels that a statute . . . should be interpreted\\nto preclude any part from being ‘inoperative, superfluous, void, or insignificant.’” Baker v.\\nState, 417 S.W.3d 428, 439 n.11 (Tenn. 2013) (quotation omitted).\\n\\n The Tennessee Supreme Court’s decision in Baker v. Promark Products West, Inc.,\\n692 S.W.2d 844 (Tenn. 1985) is instructive. In that case, the court held that a TPLA claim for\\nbreach of implied warranty can be maintained against a lessor or bailor of personal property,\\nnotwithstanding the fact that the Uniform Commercial Code provided that the warranty was\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 10\\n\\n\\nimplied only in certain contracts for “sale.” Id. at 847. The court reasoned that the legislature\\n“carefully considered who was to be a ‘seller’ in a products liability action,” and that the\\nlegislature’s inclusion of “lessor” and “bailor” in the TPLA’s definition of “seller” demonstrated\\nits intent “to extend protection for products liability injuries beyond the technical buyer-seller\\nrelationship encompassed by a strict interpretation of the Uniform Commercial Code.” Id.\\n(emphasis added). Accordingly, the court stated that in a products liability action for breach of\\nimplied warranty, no actual “sale” need occur, whereas “if the action is not a products liability\\naction . . . an actual ‘sale’ [is] required.” Id.\\n\\n This Court’s decision in Winningham v. Ciba-Geigy Corp., 156 F.3d 1234 (6th Cir. July\\n14, 1998) (Table) is similarly instructive. In that case, this Court held that the TPLA’s statute of\\nrepose applies to bailments, notwithstanding the fact that it runs from the date on which the\\nproduct was “purchased.” Id. at *3. This Court reasoned that the legislature’s inclusion of\\n“lessor” and “bailor” in the TPLA’s definition of “seller” demonstrated its intent that the statute\\nof repose apply regardless of the occurrence of an actual sale. Id. Accordingly, this Court stated\\nthat the plaintiffs’ argument “that no title passed . . . and thus no sale occurred . . . ignore[d] the\\ndefinition of the term ‘seller’ in the TPLA.” Id. Thus, it would seem that the TPLA’s definition\\nof “seller” is not limited to any individual or entity regularly engaged in transferring title to a\\nproduct for an agreed upon price, for livelihood or gain.\\n\\n Another possible construction of the TPLA’s definition of “seller” is any individual or\\nentity regularly engaged in exercising sufficient control over a product in connection with its\\nsale, lease, or bailment, for livelihood or gain. Plaintiffs argue that we should adopt this\\nconstruction because it accords with the text of the TPLA and Tennessee case law.\\n\\n Plaintiffs’ argument is persuasive. Unlike the construction urged by Defendant, this\\nconstruction is broad enough to include all of the TPLA’s examples of a “seller”—a “retailer,” a\\n“wholesaler,” a “distributor,” a “lessor,” and a “bailor,” Tenn. Code Ann. § 29-28-102(7)—each\\nof which exercises a significant degree of control over the products they sell, lease, or bail. This\\nconstruction also accords with Tenn. Code. Ann. § 29-28-105(a), the “key operative provision”\\nof the TPLA, Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 689 (Tenn. 1995), and with\\nTennessee case law. As stated above, § 29-28-105(a) provides that the liability of a\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 11\\n\\n\\n“manufacturer” or “seller” is contingent upon whether the product was “in a defective condition\\nor unreasonably dangerous at the time it left the control of the manufacturer or seller.”\\n(emphasis added). And in Baker, the Tennessee Supreme Court explained that a TPLA claim for\\nbreach of implied warranty can be maintained “[r]egardless of whether title passes in the\\ntransaction” because “one party to the relationship is in a better position to know and control the\\ncondition of the chattel.” 692 S.W.2d at 848 (emphasis added). Thus, both the legislature and\\nTennessee Supreme Court have indicated that control is an important consideration underlying\\nproducts liability law.\\n\\n Moreover, this construction is consistent with the remedial purpose of the TPLA.\\n“A primary purpose of [the TPLA] is ‘to ensure that an injured consumer may maintain a strict\\nliability action against whomever is most likely to compensate him for his injuries.’” Owens v.\\nTruckstops of Am., 915 S.W.2d 420, 432 (Tenn. 1996) (quotation omitted). In furtherance of that\\npurpose, the TPLA plainly provides that where the manufacturer and others in the chain of\\ndistribution are “not amenable to service of process,” “insolvent,” or unknown, “an injured\\nconsumer can assert liability against [a] ‘faultless’ seller. Id. Otherwise, “the injured consumer\\nwould be left with no remedy.” Id.; see also Baker, 692 S.W.2d at 848.\\n\\n In this case, Defendant is clearly the entity “most likely to compensate” Plaintiffs for\\ntheir injuries. See Owens, 915 S.W.2d at 432. The third-party seller and manufacturer of\\nPlaintiff Megan Fox’s hoverboard, to whom Plaintiffs might otherwise look for compensation,\\nappear to be judgment-proof and unknown respectively. And Defendant certainly has the\\ncapacity to compensate Plaintiffs, as it accounts for 49.1% of all online retail spending in the\\nUnited States, nearly more than all other online retailers combined, and generated $141.92\\nbillion in product sales in 2018, including $13.38 billion in fees paid by third-party sellers in the\\nfourth quarter alone.5 The combination of these two facts—Defendant’s ability to facilitate the\\nsale of goods by sellers who are functionally outside the reach of U.S. courts, and its online retail\\n\\n\\n 5See Ingrid Lunden, Amazon’s Share Of The US E-Commerce Market Is Now 49%, Or 5% Of All Retail\\nSpend, TechCrunch (July 13, 2018), https://techcrunch.com/2018/07/13/amazons-share-of-the-us-e-commerce-\\nmarket-is-now-49-or-5-of-all-retail-spend/ (last visited March 29, 2019); Allison Enright, Amazon’s Product Sales\\nClimb Nearly 20% in 2018, But Only 8% In Q4, Digital Commerce 360 (Jan. 31, 2019),\\nhttps://www.digitalcommerce360.com/article/amazon-sales/ (last visited March 29, 2019).\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 12\\n\\n\\ndominance—often drastically hinders the ability of consumers injured by defective or\\nunreasonably dangerous products to receive compensation for their injuries.\\n\\n Defendant also has the capability to spur the manufacturing and sale of safer products in\\nthe future, which is a primary purpose behind the doctrine of products liability in general. See\\nOwens, 915 S.W.2d at 432; Baker, 692 S.W.2d at 847. That capability can indeed be seen in\\nseveral of the facts of this case. Defendant required W2M to sign its BSA, which imposed\\nvarious restrictions on W2M’s ability to sell products on Defendant’s marketplace. Defendant\\nattempted to demand safety compliance documentation from third-party hoverboard sellers\\nfollowing initial reports of hoverboard fires and explosions. And Defendant eventually ceased\\nall hoverboard sales on its marketplace worldwide.\\n\\n Lastly, we note that courts applying the products liability law of other states have also\\nconsidered or adopted constructions of “seller” or other similar terms that hinge on the degree of\\ncontrol exercised over a product. See, e.g., Erie Ins. Co. v. Amazon.com, Inc., _ F.3d _, No. 18-\\n1198, 2019 WL 2195146, at *3 (4th Cir. May 22, 2019); Garber v. Amazon.com, Inc., _ F. Supp.\\n3d _, No.17-C-673, 2019 WL 1437877, at *7 (N.D. Ill. Mar. 31, 2019); Carpenter v.\\nAmazon.com, Inc., No. 17-03221-JST, 2019 WL 1259158, at *4 (N.D. Cal. Mar. 19, 2019);\\nEberhart v. Amazon.com, Inc., 325 F. Supp. 3d 393, 398–99 (S.D.N.Y. 2018); Allstate N.J. Ins.\\nCo. v. Amazon.com, Inc., No. 17-2738, 2018 WL 3546197, at *7–10 (D.N.J. July 24, 2018);\\nOberdorf v. Amazon.com, Inc., 295 F. Supp. 3d 496, 498 (M.D. Pa. 2017); see also Stiner v.\\nAmazon.com, Inc., 120 N.E.3d 885, 895 (Ohio Ct. App. 2019).\\n\\n Thus, we hold that the TPLA’s definition of “seller” means any individual regularly\\nengaged in exercising sufficient control over a product in connection with its sale, lease, or\\nbailment, for livelihood or gain. We turn next to an application of that definition to the facts of\\nthis case.\\n\\n Plaintiffs argue that Defendant exercised sufficient control over Plaintiff Megan Fox’s\\nhoverboard because Defendant (1) stored and shipped the hoverboard, (2) initially obtained the\\npayment made in exchange for the hoverboard, (3) retained the payment made in exchange for\\nthe hoverboard, and (4) handled all communications with Plaintiff Megan Fox regarding the\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 13\\n\\n\\nhoverboard. However, Plaintiffs’ first and third assertions are belied by the record. Defendant’s\\nrecords demonstrate both that the hoverboard was “[f]ulfilled by: W-Deals,” (RE 120, PageID\\n# 1566.), and that Defendant remitted approximately $1.4 million in customer payments to W2M\\nbetween January 1, 2015 and December 31, 2016, a time period which includes Plaintiff Megan\\nFox’s hoverboard purchase. Plaintiffs ask us to infer that stray pieces of circumstantial evidence\\ncast doubt on the accuracy of these records, and stress that this case is at the summary judgment\\nstage; but summary judgment “does not allow, much less require that we draw strained and\\nunreasonable inferences in favor of the nonmovant.” Audi AG v. D’Amato, 469 F.3d 534, 545\\n(6th Cir. 2006) (quotation omitted).\\n\\n What remains—Plaintiff’s second and fourth assertions—is not a sufficient exercise of\\ncontrol to be deemed a “seller” under the TPLA. In contrast to those assertions, Defendant did\\nnot choose to offer the hoverboard for sale, did not set the price of the hoverboard, and did not\\nmake any representations about the safety or specifications of the hoverboard on its marketplace.\\nWe also note that courts applying the products liability law of other states to comparable facts\\nhave reached similar conclusions. See, e.g., Garber, 2019 WL 1437877, at *7, *10; Carpenter,\\n2019 WL 1259158, at *5; Stiner, 120 N.E.3d at 895. At bottom, we are not convinced, on the\\nrecord before us, that Defendant exercised sufficient control over Plaintiff Megan Fox’s\\nhoverboard to be deemed a “seller” of the hoverboard under the TPLA. Thus, we hold that there\\nis no genuine dispute of material fact regarding Plaintiffs’ TPLA claim, and affirm the district\\ncourt’s dismissal.6\\n\\n B. Plaintiffs’ Tennessee Tort Law Claim\\n\\n Tennessee tort law provides that an individual can assume a duty to act, and thereby\\nbecome subject to the duty of acting reasonably. Grogan v. Uggla, 535 S.W.3d 864, 871 (Tenn.\\n2017). In evaluating whether such a duty has been assumed, Tennessee courts look to the\\nRestatement (Second) of Torts §§ 323, 324A. Id. at 873; see also Downs v. Bush, 263 S.W.3d\\n812, 820 (Tenn. 2008). Section 323 states:\\n\\n\\n 6Accordingly, we need not decide whether the Communications Decency Act, 47 U.S.C § 230, grants\\nDefendant immunity from Plaintiffs’ TPLA claim.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 14\\n\\n\\n One who undertakes, gratuitously or for consideration, to render services to\\n another which he should recognize as necessary for the protection of the other’s\\n person or things, is subject to the liability to the other for physical harm resulting\\n from his failure to exercise reasonable care to perform his undertaking, if\\n (a) his failure to exercise reasonable care increases the risk of such harm, or\\n (b) the harm is suffered because of the other’s reliance upon the undertaking.\\n\\nRestatement (Second) of Torts § 323 (emphasis added). And § 324A states:\\n\\n One who undertakes, gratuitously or for consideration, to render services to\\n another which he should recognize as necessary for the protection of a third\\n person or his things, is subject to liability to the third person for physical harm\\n resulting from his failure to exercise reasonable care to protect his undertaking if\\n (a) his failure to exercise reasonable care increases the risk of such harm, or\\n (b) he has undertaken to perform a duty owed by the other to the third person, or\\n (c) the harm is suffered because of reliance of the other or the third person upon\\n the undertaking.\\n\\nRestatement (Second) of Torts § 324A (emphasis added).\\n\\n Evidently, the rule stated in § 324A “parallels the one stated in § 323.” Grogan,\\n535 S.W.3d at 873 n.10 (quotation omitted). However, the emphasized references in the\\nRestatement highlight a crucial difference. Section 323 governs liability to the person to whom\\nthe defendant undertook to render services, while § 324A governs liability to persons other than\\nthe person to whom the defendant undertook to render services. Id.\\n\\n In this case, Plaintiffs allege that Defendant gratuitously undertook to warn Plaintiff\\nMegan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015\\nemail, that Defendant was negligent in that undertaking, and that Defendant’s negligence caused\\nthem harm. The district court held that § 324A was inapplicable to Plaintiffs’ claims because it\\n“contemplate[d] liability to third parties.” (RE 161, PageID # 2221–22.) And the district court\\nalso held that Plaintiffs forfeited any § 323 claim. The first holding was erroneous, and the\\nsecond we need not address.\\n\\n By its plain terms, § 324A governs liability to persons other than the person to whom the\\ndefendant undertook to render services. Grogan 535 S.W.3d at 872–73 & n.10. For instance, in\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 15\\n\\n\\nBiscan v. Brown, the plaintiff argued that the defendant undertook to monitor minors at a party at\\nwhich alcohol was served, and that the defendant’s negligent monitoring caused physical harm to\\nthe plaintiff—a motorist who was injured in a car accident with an intoxicated minor who had\\nattended the party. 160 S.W.3d 462, 483 (Tenn. 2005). Similarly, in this case, Plaintiffs argue\\nthat Defendant undertook to warn Plaintiff Megan Fox when it sent her the December 12, 2015\\nemail, and that Defendant’s negligent warning caused physical harm to the other members of her\\nfamily. Accordingly, while Defendant’s liability to Plaintiff Megan Fox is properly governed by\\n§ 323, Defendant’s liability to the other members of her family is properly governed by § 324A.7\\nSee Grogan, 535 S.W.3d at 872–73. Thus, the district court’s holding that § 324A was\\ninapplicable to Plaintiffs’ Tennessee tort law claim was erroneous.\\n\\n Applying § 324A to the facts of this case, Defendant chose to send the December 12,\\n2015 email to Plaintiff Megan Fox, and in doing so plainly sought to warn her of the dangers\\nposed by the hoverboard. The body of the email stated: “There have been news reports of safety\\nissues involving products like the one you purchased that contain rechargeable lithium-ion\\nbatteries. As a precaution, we want to share with you some additional information about lithium-\\nion batteries and safety tips for using products that contain them.” (RE 117-17, PageID # 1402.)\\nAnd Defendant just as plainly recognized the warning as necessary for the protection of a third\\nparty or his things. The body of the email also specifically requested that the recipient “pass\\nalong this information” to the proper person if the hoverboard was purchased for someone else.\\n(Id.) Thus, we hold that Defendant assumed a duty to warn Plaintiff Megan Fox of the dangers\\nposed by the hoverboard when it sent her the December 12, 2015 email. See Grogan,\\n535 S.W.3d at 874 (“[T]he question of whether one has assumed a duty to act is . . . a question of\\nlaw.”) (alterations in original) (quotation omitted).\\n\\n Given that Defendant assumed a duty to act, there remain genuine issues of material fact\\nregarding whether Defendant breached that duty and whether any breach caused Plaintiffs\\nphysical harm. For instance, there is a genuine issue of material fact regarding whether\\nDefendant’s failure to include certain information in the December 12, 2015 email amounted to\\n\\n 7Plaintiff Megan Fox does not allege that she suffered any physical harm, therefore we need not decide\\nwhether she forfeited her § 323 claim, for it fails as a matter of law. See Grogan, 535 S.W.3d at 874.\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 16\\n\\n\\nnegligence. The email did not inform hoverboard purchasers of any of the actions Defendant had\\ntaken to evaluate the dangers posed by hoverboard, including the findings and results of its\\ninternal investigation. The email did not inform hoverboard purchasers that the reported safety\\nissues included a risk of fire or explosion. And the email did not inform hoverboard purchasers\\nthat Defendant had ceased all hoverboard sales worldwide.\\n\\n Additionally, there is a genuine issue of material fact regarding whether Plaintiff Megan\\nFox read the December 12, 2015 email, and thereby could have acted in reliance on it.\\nSuch reliance is required by subsection (c) of § 324A, one of three subsections under which\\nPlaintiffs’ claim may proceed. Though Plaintiff has no specific recollection of reading the email,\\nshe “had a habit” of reading emails sent to her email address. (RE 161, PageID # 2210.)\\nPlaintiff also testified that she would not have let the hoverboard enter or remain in her home had\\nshe known, among other things, that there had been 17 complaints of hoverboard fires or\\nexplosions in the United States that involved hoverboards purchased on Defendant’s\\nmarketplace, that Defendant anticipated additional complaints, particularly during the holiday\\nseason in late December, or that Defendant had ceased all hoverboard sales worldwide.\\n\\n Thus, we hold that there are genuine disputes of material fact regarding Plaintiffs’\\nTennessee tort law claim, and reverse the district court’s dismissal.8\\n\\n C. Plaintiffs’ Tennessee Consumer Protection Act (“TCPA”) Claim\\n\\n The TCPA prohibits “[u]nfair or deceptive acts or practices affecting the conduct of any\\ntrade or commence,” including “[c]ausing likelihood of confusion or of misunderstanding as to\\nthe source, sponsorship, approval, or certification of goods or services.” Tenn. Code Ann. § 47-\\n18-104(a), (b)(2). In this case, Plaintiffs allege that Defendant’s policy allowing third-party\\nsellers to choose “friendly names” by which they would be identified as a seller of their products\\ncaused a likelihood of confusion or misunderstanding as to the source of the hoverboard.\\nSpecifically, Plaintiffs allege that Defendant’s policy deceptively caused Plaintiff Megan Fox to\\n\\n\\n 8Defendant concedes that the Communications Decency Act, 47 U.S.C § 230, does not grant it immunity\\nfrom Plaintiffs’ Tennessee tort law claim. (RE 120, PageID # 1583.) (“All of Plaintiffs’ claims except those arising\\nfrom the December 12 email require treating Amazon as a publisher of W-Deals’ offer.”).\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 17\\n\\n\\nbelieve that Defendant owned the hoverboard, and that she was purchasing the hoverboard from\\nDefendant.\\n\\n The district court held that Plaintiffs did not “demonstrate a sufficient causal link” to state\\ntheir TCPA claim. (RE 161, PageID # 2227.) On appeal, Plaintiffs argue (1) that they did\\ndemonstrate a sufficient causal link, and (2) that the district court erroneously granted summary\\njudgment on grounds not briefed by the parties. Defendant argues that the district court properly\\ndetermined that Plaintiffs did not demonstrate a sufficient causal link.\\n\\n In order to prevail on a claim under the TCPA, “the alleged unfair or deceptive act or\\npractice must in fact cause the damages of which the plaintiff complains.” White v. Early,\\n211 S.W.3d 723, 743 (Tenn. Ct. App. 2006). Accordingly, Plaintiffs must demonstrate that\\nPlaintiff Megan Fox would not have purchased the hoverboard but for W2M’s choice and use of\\nthe “friendly names” “W-Deals” and “-DEAL-.” Plaintiffs rely solely on Plaintiff Megan Fox’s\\naffidavit to satisfy this element of their TCPA claim.\\n\\n Plaintiff’s affidavit states that she “do[es] not recall noticing the name ‘-DEAL-’ as the\\nseller of the hoverboard.” (RE 146-3, PageID # 1942.) While it also states that “even if [she]\\nhad noticed the name ‘-DEAL-’ as the ‘[s]eller’” she would not have “recognized or understood\\nthose names to refer to a third-party seller,” that statement does not demonstrate the requisite\\ncausal link. It does not establish that but for W2M’s choice and use of the “friendly names” “W-\\nDeals” and “-DEAL-” Plaintiff would not have purchased the hoverboard. See Hamlin v. Trans-\\nDapt of Cal., Inc., 584 F. Supp. 2d 1050, 1058 (M.D. Tenn. 2008) (granting judgment as a matter\\nof law on a TCPA claim because “there [was] no indication that [the plaintiff’s] loss was caused\\nby . . . reliance on a false impression” created by the defendant).\\n\\n Plaintiffs also argue that the district court improperly granted summary judgment on\\ncausation grounds because causation was not briefed by the parties. See Smith v. Perkins Bd. of\\nEduc., 708 F.3d 821, 828 (6th Cir. 2013). However, Defendant asserted in support of its motion\\nfor summary judgment that Plaintiffs “d[id] not tie any Amazon conduct to any acts or practices\\ndeclared unlawful by Section 47-18-104(b) of the TCPA.” (RE 120, PageID # 1579.) This\\n\\f No. 18-5661 Fox, et al. v. Amazon.com, Inc. Page 18\\n\\n\\nassertion was sufficient to put Plaintiffs “on notice that [they] had to muster the necessary facts\\nto withstand summary judgment” on causation grounds. Smith, 708 F.3d at 829.\\n\\n Thus, we hold that there is no genuine issue of material fact regarding Plaintiffs’ TCPA\\nclaim, and affirm the district court’s dismissal.9\\n\\n CONCLUSION\\n\\n For the reasons set forth above, we AFFIRM the district court’s summary judgment\\norder with respect to Plaintiffs’ TPLA and TCPA claims, and REVERSE the district court’s\\nsummary judgment order with respect to Plaintiffs’ Tennessee tort law claim.\\n\\n\\n\\n\\n 9Accordingly, we need not decide whether the Communications Decency Act, 47 U.S.C. § 230, grants\\nDefendant immunity from Plaintiffs’ TCPA claim.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2494,"cells":{"id":{"kind":"number","value":4627976,"string":"4,627,976"},"name":{"kind":"string","value":"Adam KANUSZEWSKI, Et Al., Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal Biobank, Incorporated, AKA Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Adam Kanuszewski v. Mich. Dep't of Health & Human Servs."},"decision_date":{"kind":"string","value":"2019-06-10"},"docket_number":{"kind":"string","value":"18-1896"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Clay, Rogers\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888692/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888693/\", \"author_raw\": \"\"}, {\"author\": \"CLAY, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0122p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n ADAM KANUSZEWSKI, et al., ┐\\n Plaintiffs-Appellants, │\\n │\\n │\\n v. │\\n > No. 18-1896\\n │\\n MICHIGAN DEPARTMENT OF HEALTH AND HUMAN │\\n SERVICES; NICK LYON; SANDIP SHAH; SARAH LYON- │\\n CALLO; MARY KLEYN; MICHIGAN NEONATAL │\\n BIOBANK, INCORPORATED, aka Michigan Neonatal │\\n Biorepository; ANTONIO YANCEY, │\\n Defendants-Appellees. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Bay City.\\n No. 1:18-cv-10472—Thomas L. Ludington, District Judge.\\n\\n Argued: March 13, 2019\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: MERRITT, CLAY, and ROGERS, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for\\nAppellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for\\nAppellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, PEAR SPERLING\\nEGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio\\nYancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin,\\nOFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees\\nMichigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-\\nCallo, and Mary Kleyn. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC,\\nHemlock, Michigan, for Appellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY,\\nDetroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy,\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 2\\n\\n\\nJerold Lax, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees\\nNeonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal\\nBioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,\\nMichigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon,\\nSandip Shad, Sarah Lyon-Callo, and Mary Kleyn.\\n\\n CLAY, J., delivered the opinion of the court in which MERRITT and ROGERS, JJ.,\\njoined. ROGERS, J. (pp. 34–35), delivered a separate concurrence.\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n CLAY, Circuit Judge. Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and\\nLynnette Wiegand, individually and as parent-guardians to their minor children, appeal the\\ndistrict court’s grant of a motion to dismiss Plaintiffs’ claims filed by Defendants Michigan\\nDepartment of Health and Human Services and its employees1 being sued in their official and\\nindividual capacities; and Michigan Neonatal Biobank, Incorporated, and its Director, Dr.\\nAntonio Yancey, sued in his official and individual capacities. For the reasons set forth below,\\nwe AFFIRM IN PART and REVERSE IN PART the district court’s judgment and REMAND\\nfor further proceedings consistent with this opinion.\\n\\n BACKGROUND\\n\\n Plaintiffs’ alleged constitutional violations concern Michigan’s Newborn Screening\\nProgram (“NSP”). The NSP, which Michigan has operated since the 1960s, involves Defendant\\nMichigan Department of Health and Human Services and its agents collecting blood samples\\n(sometimes referred to as “blood spots”) with a filter paper collection device known as a Dried\\nBlood Spot card from nearly every newborn baby in Michigan, to test for various diseases. On\\nApril 30, 2018, Plaintiffs filed their First Amended Complaint for Injunctive and Declaratory\\n\\n\\n\\n\\n 1These employees are Nick Lyons, Dr. Sandip Shah, Dr. Sarah Lyon-Callo, and Mary Kleyn. Harry\\nHawkins was named as a defendant in the complaint but has since died, and the dismissal of Plaintiffs’ claims\\nagainst him are not on appeal.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 3\\n\\n\\nRelief with Possible Money Damages for Constitutional Violations. According to the\\nComplaint,2 the facts are as follows:\\n\\n Plaintiffs Adam Kanuszewski and Ashley Kanuszewski have three minor children born\\nover the last eleven years. Plaintiff Shannon Laporte has two minor children born over the last\\neleven years. Plaintiff Lynnette Wiegand has four minor children born over the last eight years.\\nThe Complaint alleges, with respect to the NSP, that blood is drawn from newborns without the\\nconsent or knowledge of the newborns’ parents. Once collected, the blood samples are tested for\\nover fifty maladies, disorders, or diseases. Defendants retain the samples after screening them\\nfor these diseases; the samples are transferred to Defendant Michigan Neonatal Biobank, a non-\\nprofit corporation, under the custody and control of Defendant Dr. Antonio Yancey, where they\\nare stored for future use by the state. Plaintiffs allege that Defendants lack parental consent to\\nretain, transfer, store, or otherwise use the children’s blood samples after they have been\\nscreened for diseases.3\\n\\n Plaintiffs allege that despite Defendants’ assurances that all blood samples are secure and\\nnot identifiable to the individuals from whom they were taken, some samples kept in storage at\\nthe Neonatal Biobank have been given up pursuant to state court orders and some samples either\\nhave been or are in the process of being sold to third-party businesses and researchers. Plaintiffs\\ndo not allege that the children’s specific blood samples have been sold or given up pursuant to a\\ncourt order.\\n\\n Plaintiffs allege that Defendants violated their substantive due process rights by not\\nallowing them to decide whether to accept or reject the medical procedure in question prior to the\\ncollection of their babies’ blood. Plaintiffs allege that Defendants “deprived the Infants [of] their\\n\\n 2Plaintiffs argue that the district court “authorized [], at least in part,” Defendants’ allegedly improper\\nattachment of documents to its motion to dismiss. (Appellants’ Br. 41–49.) Because we review de novo the district\\ncourt’s decisions in this case, Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012), and because we\\nmay decide the issues on appeal without reference to any documents attached to Defendants’ motion to dismiss, we\\nneed not address the matter of the attachment.\\n 3The Complaint seems to equivocate slightly, stating that “[a]t some point during the hospital stay for the\\nbirth of the Infants, the Parents might have been presented with a card giving the Parents an option of whether they\\nwanted their Infants’ already illegally seized and tested blood to be donated to medical research”—but Plaintiffs\\nallege that any purported consent was “not general or informed” and was therefore ineffective. (R. 26, Complaint,\\nPage ID# 313.)\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 4\\n\\n\\nliberty interest in their guardians self-making informed personal and private medical procedure\\ndecisions without due process of law.” (R. 26, Complaint, Page ID# 325.) Plaintiffs allege that\\ncollecting the blood samples constituted an unconstitutional search or seizure under the Fourth\\nAmendment. Plaintiffs allege that the transfer of the samples to, and the samples’ storage with,\\nDefendant Neonatal Biobank constituted a further, ongoing seizure for which the Neonatal\\nBiobank was “a state actor or . . . otherwise liable via civil conspiracy under 42 U.S.C. § 1983\\ndespite being formed as a non-profit domestic corporation.” (R. 26, Complaint, Page ID# 328,\\n329.)\\n\\n Plaintiffs seek declaratory judgment declaring Defendants’ conduct violative of the\\nFourth and Fourteenth Amendments. Plaintiffs seek many forms of prospective injunctive relief,\\nincluding the following: to halt “the illegal processes and procedures”; to halt continued\\npossession and retention of all blood samples taken, transferred, or stored without informed\\nconsent; and to command Defendants “to destroy all data collected or extracted regarding the\\nInfants, and return to the Parents all blood samples and spots of the Infants” that were obtained\\nwithout informed consent. (R. 26, Complaint, Page ID# 329–32.) Finally, Plaintiffs seek\\ndamages in connection with Defendants’ alleged constitutional violations.\\n\\n Defendants filed motions to dismiss Plaintiffs’ claims. After briefing, the district court\\ngranted Defendants’ motions to dismiss and dismissed Plaintiffs’ Complaint with prejudice.\\nPlaintiffs then filed this timely appeal.\\n\\n DISCUSSION\\n\\n Plaintiffs allege that Defendants, through their operation of and participation in the NSP,\\nhave violated and continue to violate their substantive due process rights because blood is drawn\\nfrom the children and retained without parental consent. Plaintiffs also allege that Defendants\\nhave violated and continue to violate the Fourth Amendment rights of the children because\\ndrawing the children’s blood constituted a search for which a warrant was required. Before we\\nanalyze whether Defendants have violated Plaintiffs’ constitutional rights, we will address the\\nquestion of Plaintiffs’ standing to bring these claims.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 5\\n\\n\\nI. Standing\\n\\n Defendants argue that Plaintiffs lack standing to bring their claims.\\n\\n This Court reviews de novo determinations of standing. Shearson v. Holder, 725 F.3d\\n588, 592 (6th Cir. 2013). Because standing doctrine comes from Article III’s case-or-\\ncontroversy requirement, it is jurisdictional and must be addressed as a threshold matter.\\nNikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017). Standing requires Plaintiffs to show 1) that\\nthey have suffered an injury-in-fact that was 2) caused by Defendants’ conduct and that 3) this\\nCourt can likely redress the injury with a decision for Plaintiffs. Id. at 315–16. Plaintiffs, as the\\nparties invoking federal jurisdiction, bear the burden of proving the three elements of standing.\\nShearson, 725 F.3d at 592. At the pleadings stage, a plaintiff “must ‘clearly . . . allege facts\\ndemonstrating’ each element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting\\nWarth v. Seldin, 422 U.S. 490, 518 (1975)).\\n\\n The questions of standing in this case concern the injury-in-fact requirement. To satisfy\\nthis requirement, Plaintiffs must allege that they “have suffered an injury in fact, which is\\n‘concrete, particularized, and actual or imminent.’” Shearson, 725 F.3d at 592 (quoting Clapper\\nv. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). The threat of future harm can satisfy this\\nrequirement as long as there is a “substantial risk” that the harm will occur. Clapper, 568 U.S. at\\n414 n.5 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010). By the same\\ntoken, “‘[a]llegations of possible future injury’ are not sufficient.” Id. at 409 (emphasis in\\noriginal) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The Supreme Court has\\nnoted that “a highly attenuated chain of possibilities [] does not satisfy the requirement that\\nthreatened injury must be certainly impending.” Id. at 410.\\n\\n The distinction between past and ongoing or future harms is significant because the type\\nof harm affects the type of relief available. Past harm allows a plaintiff to seek damages, but it\\ndoes not entitle a plaintiff to seek injunctive or declaratory relief. This is because the fact that a\\nharm occurred in the past “does nothing to establish a real and immediate threat that” it will\\noccur in the future, as is required for injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95,\\n106 (1983). Obtaining standing for declaratory relief has the same requirements as obtaining\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 6\\n\\n\\nstanding for injunctive relief. National Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.\\n1997) (“When seeking declaratory and injunctive relief, a plaintiff must show actual present\\nharm or a significant possibility of future harm in order to demonstrate the need for pre-\\nenforcement review.”).\\n\\n Our standing analysis in this case is complicated because Plaintiffs raise numerous\\nclaims, each of which must independently meet the requirements for standing. Town of Chester\\nv. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (“[A] plaintiff must demonstrate standing for\\neach claim he seeks to press and for each form of relief that is sought.” (quoting Davis v. Fed.\\nElection Comm’n, 554 U.S. 724, 734 (2008)). Further, within each claim we must determine\\nwhether the alleged harm affords Plaintiffs standing to seek injunctive and declaratory relief, or\\nonly damages. Accordingly, to properly analyze standing, we will disaggregate Plaintiffs’\\nclaims and the forms of relief sought. See Town of Chester, 137 S. Ct. at 1650.\\n\\n As a brief overview, there are two types of constitutional violations alleged (substantive\\ndue process and the Fourth Amendment) and two types of Plaintiffs (the parents and the\\nchildren). Under the broader heading of substantive due process, Plaintiffs allege violations of\\nthe “children’s right to refuse medical treatment” and of the “parents’ own fundamental liberty\\ninterest in the care, custody and management of their children.”4 (Appellants’ Br. 21 (emphasis\\nadded).) Plaintiffs also claim that Defendants violated the children’s Fourth Amendment rights.\\nWith respect to the temporal aspect of their harm, Plaintiffs complain of the completed collection\\n\\n\\n 4Defendants argue that because Plaintiffs captioned their Complaint as “[Parents’ names] as parent-\\nguardians and next friend to their minor children,” only the rights of the children—not their parents—are before us.\\n(Appellee State Defendants’ Br. 13–14.) Rule 17(c) of the Federal Rules of Civil Procedure allows an action to be\\nbrought on behalf of a minor by “a general guardian” or if the minor “does not have a duly appointed representative\\n. . . by a next friend.” Fed. R. Civ. P. 17(c). Rule 10(a) requires that a complaint’s title “name all the parties.” Fed.\\nR. Civ. P. 10(a). If the Plaintiffs intended to raise the rights of the parents, they might instead have captioned their\\ncase “[Parents’ names], individually, and as parent-guardians and next friend to their minor children . . .”; however,\\n“errors in captions are common and need not ‘be viewed as [] fatal defect[s].’” Hawkins v. Wash. Metro. Area\\nTransit Auth., 311 F. Supp. 3d 94, 101 (D.D.C. 2018) (quoting 5A Wright & Miller, Federal Practice & Procedure\\n§ 1321 (3d ed. 2004 & Supp. 2017)). Our touchstone is adequate notice, and the Federal Rules of Civil Procedure\\n“evidence a ‘clear preference to resolve disputes on their merits.’” Hawkins, 311 F. Supp. 3d at 102 (quoting Cohen\\nv. Bd. of Trustees of the Univ. of Dist. of Columbia, 819 F.3d 476, 482–83 (D.C. Cir. 2016)). Because the\\nComplaint provided Defendants adequate notice that the parents were asserting their own rights in addition to those\\nof their children, Plaintiffs’ claims involving the rights of the parents are properly before us. (See R. 26, Complaint,\\nPage ID# 305 (“Plaintiffs in this action are the Infants themselves and each parent as parents-guardians of one or\\nmore children born in the State of Michigan.”))\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 7\\n\\n\\nof the children’s blood samples, as well as the ongoing storage of the samples and the risk of the\\nfuture use of the samples by third parties.\\n\\n To simplify this complex analysis, we will divide it into four relevant questions: 1) Did\\nthe children suffer an injury-in-fact when blood samples were taken from them? 2) Did their\\nparents suffer an injury-in-fact when their children’s blood samples were taken? 3) Do the\\nchildren suffer an injury-in-fact from either the ongoing storage of their samples or the risk of\\nfuture use of the samples? 4) Do the parents suffer an injury-in-fact from either the ongoing\\nstorage of their children’s samples or the risk of future use of the samples? The answers to these\\nquestions may determine whether and in what forms Plaintiffs may seek relief under each of\\ntheir claims.\\n\\n 1. Whether the children suffered an injury-in-fact when blood samples were taken\\n from them\\n\\n Plaintiffs assert that the children have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on injuries that occurred when their blood was initially\\ndrawn and screened for diseases. Plaintiffs argue that the children’s substantive due process\\nright to have their parents direct their medical care was violated when Defendants drew a sample\\nof the children’s blood without first obtaining parental consent, and that this drawing of blood\\nconstituted an injury-in-fact affording the children standing to pursue their substantive due\\nprocess claims. Plaintiffs also claim that the children’s Fourth Amendment rights were violated\\nwhen Defendants drew a sample of the children’s blood because this constituted a warrantless\\nsearch to which no exception to the warrant requirement applied, and that this drawing of blood\\nconstituted an injury-in-fact affording the children standing to pursue their Fourth Amendment\\nclaims. Because the blood samples have already been collected, the children’s Fourth and\\nFourteenth Amendment claims arising out of the initial drawing of blood both pertain to a\\ncompleted harm and therefore afford the children standing to seek only damages—not injunctive\\nor declaratory relief—resulting from this alleged violation. See Lyons, 461 U.S. at 105.\\n\\n We begin our injury-in-fact analysis by noting that it can be very invasive to draw an\\nindividual’s blood. Drawing blood involuntarily denies an individual bodily autonomy and\\ninterferes with one’s bodily integrity. Missouri v. McNeely, 569 U.S. 141, 148 (2013). Drawing\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 8\\n\\n\\nblood can also violate one’s privacy by revealing sensitive, confidential information about that\\nindividual. See id.; Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989)\\n(noting that “chemical analysis of urine, [or] blood, can reveal a host of private medical facts\\nabout an [individual], including whether he or she is epileptic, pregnant, or diabetic”).\\n\\n With respect to their Fourth Amendment claims, Plaintiffs allege that the children’s\\nFourth Amendment rights were violated when the state drew a blood sample from them and\\ntested it for diseases. Our standing analysis does not consider the merits of Plaintiffs’ claims;\\ninstead, we must assume that “if proved in a proper case,” Defendants’ alleged practices “would\\nbe adjudged violative of the [Plaintiffs’] constitutional rights.” Warth, 422 U.S. at 502. The\\ncompleted harm from Defendants’ alleged Fourth Amendment violation affords the children\\nstanding to seek damages, but because there is no allegation that the state will once again collect\\nblood from the children in the future, the children lack standing to pursue a claim for injunctive\\nor declaratory relief. See Lyons, 461 U.S. at 105 (denying standing to pursue injunctive relief\\nbecause the fact “[t]hat Lyons may have been illegally choked by the police . . . , while\\npresumably affording Lyons standing to claim damages . . . , does nothing to establish a real and\\nimmediate threat that he would again [be illegally choked]”).\\n\\n With respect to Plaintiffs’ substantive due process claim, this same reasoning applies.\\nThe completed harm from Defendants’ alleged substantive due process violation affords the\\nchildren standing to seek damages, but there is no allegation of a real or immediate threat that the\\nstate will do so again.\\n\\n Thus, with respect to their Fourth Amendment and substantive due process claims\\nconcerning the initial drawing of blood, the children have standing to pursue damages but not\\ninjunctive or declaratory relief.\\n\\n 2. Whether the parents suffered an injury-in-fact when their children’s blood\\n samples were taken\\n\\n Plaintiffs similarly assert that the parents have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on injuries that occurred when their children’s blood was\\ninitially drawn and screened for diseases. Plaintiffs argue that the parents’ substantive due\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 9\\n\\n\\nprocess right to direct their children’s medical care was violated when Defendants drew a sample\\nof the children’s blood without first obtaining parental consent, and that this drawing of blood\\nconstituted an injury-in-fact affording the parents standing to pursue their substantive due\\nprocess claims. But this is a completed harm that only gives the parents standing to pursue\\ndamages resulting from this alleged violation. See Lyons, 461 U.S. at 105.\\n\\n If parents have a substantive due process right to make decisions relating to their\\nchildren’s medical care, then the parents in this case have suffered an injury-in-fact from having\\nbeen denied the exercise of the right, which affords them standing to pursue damages. However,\\nthe parents cannot seek prospective relief because they do not allege a real or immediate threat\\nthat the state will repeat the alleged violation. Perhaps the parents could have argued (although\\nthey did not) that the threat remains because they have the ability to have more children, who\\nwould at birth be subject to having their blood drawn, which would again infringe upon the\\nparents’ substantive due process rights. However, even if this argument were raised, without\\nfurther description of the parents’ concrete reproductive plans it would be foreclosed by the\\nSupreme Court’s decision in Lujan v. Defenders of Wildlife. 504 U.S. 555, 564 (1992) (“‘[S]ome\\nday’ intentions—without any description of concrete plans, or indeed even any specification of\\nwhen the some day will be—do not support a finding of the ‘actual or imminent’ injury that our\\ncases require.”).\\n\\n Thus, like the children, the parents have standing to pursue damages, but not injunctive or\\ndeclaratory relief with regard to the initial taking of the blood samples from the children.\\n\\n 3. Whether the children suffer an ongoing injury-in-fact from the storage of their\\n samples or face a substantial risk of future harm from the use of their samples\\n\\n Plaintiffs argue that the children have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on ongoing injuries and the threat of further injuries\\nresulting from the transfer and storage of their blood samples, which they allege violated the\\nFourth and Fourteenth Amendments. Because the storage of the blood samples represents an\\nongoing violation, the children will be able to pursue all three forms of relief, i.e., injunctive,\\ndeclaratory, and damages, in connection with both their Fourth and Fourteenth Amendment\\nclaims.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 10\\n\\n\\n We begin with Plaintiffs’ claims relating to the children’s Fourth Amendment rights.\\nPlaintiffs allege violations of the children’s Fourth Amendment rights in connection with\\nDefendants’ transfer and storage of the blood samples. Assuming that the storage is a Fourth\\nAmendment violation, it is the sort of actual, ongoing harm that affords a plaintiff standing to sue\\nfor damages, as well as injunctive and declaratory relief. See National Wildlife Federation v.\\nU.S. Army Corps of Engineers, 170 F. Supp. 3d 6, 14 (D.D.C. 2016) (“Still viable at this juncture\\nis the conservation groups’ claim of an actual ongoing harm to their recreational and aesthetic\\ninterests, which supports standing . . . .”). Thus, Plaintiffs have alleged an injury-in-fact\\nsufficient for standing to seek all three types of relief.\\n\\n With respect to Plaintiffs’ claims relating to the children’s substantive due process rights,\\nPlaintiffs assert two types of injury. One asserted injury is too speculative to constitute an\\ninjury-in-fact for prospective relief, but the other provides the children with standing for all three\\ntypes of relief sought.\\n\\n In their complaint, Plaintiffs allege that the children’s samples were sent to the Neonatal\\nBiobank and that it is within the bank’s power to sell or otherwise use the samples for state\\npurposes, even if it has not yet done so. At no point in this litigation have Defendants denied\\nthat the Neonatal Biobank possesses such authority—though this might be because no Defendant\\nhas yet answered Plaintiffs’ Complaint. Nor have Defendants denied that the state has a present\\nor future commercial interest in the blood samples, inasmuch as the Neonatal Biobank may wish\\nto sell these samples to third parties. Plaintiffs also allege that “there are no statutory legal\\nprotections on who may access, use, or utilize the private medical and genetic information of the\\nInfants.” (R. 26, Complaint, Page ID# 317.) Drawing on these allegations, Plaintiffs’ first\\nasserted injury is their fear of “the misuse of that information” and “the possibility of\\ndiscrimination against their Infants and perhaps even relatives through the use of such blood\\nsamples and research activity thereon.” (Id., Page ID# 320–21.) Plaintiffs argue their fears are\\n“well-founded” since blood spots have “resulted in the arrest of an alleged killer” and “the\\nwrongful arrest of persons who were not guilty of any crime.” (Id., Page ID# 318.)\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 11\\n\\n\\n Plaintiffs’ first asserted injury does not meet the injury-in-fact requirement, because it\\nrelates to a possibility of future harm that is not concrete, particularized, or imminent.5 The\\nSupreme Court has explained that an alleged future harm cannot be “too speculative . . .\\n[but rather must be] certainly impending.” Clapper, 568 U.S. at 409 (emphasis in original)\\n(quoting Lujan, 504 U.S. at 564 n.2). The Court clarified that this does not require “literal[]\\ncertain[ty]” but at least a “substantial risk” that the harm will occur. Id. at 414 n.5 (quoting\\nMonsanto Co., 561 U.S. at 153).\\n\\n The primary problem with Plaintiffs’ first asserted injury is that for the injury to occur,\\nthe researchers or businesses will have to use the “deeply private medical and genetic\\ninformation” contained in the blood samples to discriminate against the children or their families,\\nor otherwise harm them. (R. 26, Complaint, Page ID# 320.) The Supreme Court has made clear\\nthat “mere[] speculat[ion] and . . . assumptions about” how the government will operate one of\\nits programs is not a sufficiently particularized harm to meet the injury-in-fact requirement.\\nClapper, 568 U.S. at 412. This is true even where the government has the power to do what a\\nplaintiff fears it might. Id. Plaintiffs have not alleged facts that demonstrate a substantial risk\\nthat they will suffer discrimination. Rather, Plaintiffs’ first theory of harm consists largely of\\nspeculation and therefore cannot satisfy the injury-in-fact requirement. Cf. Clapper, 568 U.S. at\\n410 (finding no injury-in-fact where plaintiffs feared that a series of events would occur which\\nwould ultimately result in harm because the threat of harm was too speculative).\\n\\n Plaintiffs’ second theory of injury relates to the infringement of the children’s protected\\nprivacy interests, and this theory is more persuasive. This theory affords the children standing to\\n\\n\\n\\n 5Defendants also argue that this is not a cognizable harm because a parent or guardian may request that a\\nblood sample not be used for research “by contacting [the Department of Community Health] by telephone or mail”\\nor request that a sample be destroyed if they provide information “to confirm that they have authority to make such a\\nrequest.” (R. 26-3, MDCH Manual, Page ID# 336.) The existence of these options, Defendants argue, means that\\n“there is a remedy available outside of litigation to prevent th[e] speculative harm [of misuse or discrimination] from\\noccurring.” (Appellee Biobank Br. 9.) However, Defendants cite no cases explaining what the significance of\\nalternate remedies being available has in standing analysis, and Plaintiffs correctly point out that this argument\\nsuggests there is an exhaustion-of-remedies requirement to § 1983 claims, which Supreme Court precedent has\\nexpressly rejected. See Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy [under § 1983] is\\nsupplementary to [any] state remed[ies], and the latter need not be first sought and refused before the federal one is\\ninvoked.”).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 12\\n\\n\\npursue damages, as well as prospective relief, in connection with their substantive due process\\nclaims relating to the transfer and ongoing storage of their blood samples.\\n\\n With respect the children’s standing to pursue damages, the Supreme Court has held that\\nconducting chemical analysis on blood samples invades the subject’s privacy interests. Skinner,\\n489 U.S. at 616. This is because “chemical analysis of urine, [or] blood, can reveal a host of\\nprivate medical facts about an [individual], including whether he or she is epileptic, pregnant, or\\ndiabetic.” Id. at 617. Therefore, if we assume that Defendants violated the children’s substantive\\ndue process rights when they tested the blood samples for various diseases, the children have\\nsuffered a completed injury-in-fact based on Defendants’ infringement upon their privacy\\ninterest, which affords them standing to seek damages. See Lyons, 461 U.S. at 105.\\n\\n Further, with respect to prospective relief, there is a substantial risk that additional\\nchemical analysis of the samples will occur, meaning that this second theory of injury affords the\\nchildren standing to seek injunctive and declaratory relief as well. The problem with the chain of\\ninferences in the first theory of injury is that it is too speculative to assert that third parties may\\nuse the information contained in the blood samples to discriminate against Plaintiffs. However,\\nit is not too speculative to assert that the state or third parties may conduct chemical analysis on\\nthe blood samples—indeed, Plaintiffs allege that this is the very reason why the state retains the\\nsamples and why third parties wish to obtain them. Cf. Galaria v. Nationwide Mut. Ins. Co., 663\\nF. App’x 384, 388 (6th Cir. 2016) (finding injury-in-fact where hackers had obtained plaintiffs’\\ndata but had not yet misused it because “a reasonable inference can be drawn that the hackers\\nwill use the victims’ data for” fraudulent purposes). Because there is a substantial risk that the\\nchildren will suffer further harm if and when the state or third parties conduct chemical analysis\\non the children’s samples, the children have standing to pursue prospective relief.\\n\\n Thus, the children have standing to seek injunctive and declaratory relief, as well as\\ndamages, in connection with their Fourth and Fourteenth Amendment claims relating to the\\ntransfer and storage of their blood samples.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 13\\n\\n\\n 4. Whether the parents suffer an ongoing injury-in-fact from the storage of their\\n children’s samples or face a substantial risk of future harm from the use of the\\n samples\\n\\n Finally, Plaintiffs assert that the parents have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on ongoing injuries and the threat of further injuries\\nresulting from the transfer and storage of their children’s blood samples, which they allege\\nviolate the Fourteenth Amendment. The parents have standing to seek all three forms of relief.\\n\\n The Complaint states that “the Parents are concerned and fear about the misuse of that\\ninformation and fear the possibility of discrimination against their Infants and perhaps even\\nrelatives through the use of such blood samples and research activity thereon.” (R. 26,\\nComplaint, Page ID# 320–21.) This fails as an injury-in-fact for the reasons discussed in the\\nprevious section. However, the parents do have standing to pursue injunctive and declaratory\\nrelief, as well as damages, in connection with their claim that the ongoing storage of their\\nchildren’s blood samples violates their substantive due process rights to direct and control the\\nmedical care of their children.\\n\\n Plaintiffs argue that the Fourteenth Amendment protects parents’ rights to direct the\\nmedical care of their children. For purposes of our standing analysis, we assume that Plaintiffs\\nwill be able to prove that the transfer and storage of their children’s blood samples violates the\\nparents’ substantive due process rights. The Supreme Court has held that parents have standing\\nwhen the state interferes with their right to control the upbringing of their children, as when\\nparents’ “impressionable schoolchildren were subjected to unwelcome religious exercises or\\nwere forced to assume special burdens to avoid them.” Valley Forge Christian College v.\\nAmericans United for Separation of Church and State, Inc., 454 U.S. 464, 486 n.22 (1982)\\n(discussing Abington School District v. Schempp, 374 U.S. 203 (1963)); accord Caldwell v.\\nCraighead, 432 F.2d 213, 220 (6th Cir. 1970) (“In challenging the constitutionality of [certain]\\ntypes of religious services, there is sufficient interest to sue if the parties are either students\\nenrolled in the institution where the services are carried on or are parents of the students.”). Just\\nas it represents a harm to parents when the state denies them their right to direct the education\\nand religious upbringing of their children, it represents a harm when the state denies parents the\\nright to direct the medical care of their children. The parents in this case allege that they are\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 14\\n\\n\\nbeing denied their right to direct the medical care of their children by Defendants’ ongoing\\nstorage of the blood samples without parental consent and will be further denied this right if the\\nstate conducts research using the samples or transfers the samples to third parties. These alleged\\nharms afford the parents standing to seek injunctive and declaratory relief, as well as damages, in\\nconnection with the storage of their children’s blood samples.\\n\\n In sum, the claims for which Plaintiffs have standing6 are as follows: 1) a claim for\\ndamages based on the alleged violation of the children’s substantive due process rights when\\ntheir blood samples were collected and screened for diseases; 2) a claim for damages based on\\nthe alleged violation of the parents’ substantive due process rights when their children’s blood\\nsamples were collected and screened for diseases; 3) a claim for damages, as well as injunctive\\nand declaratory relief, based on the alleged violation of the children’s substantive due process\\nrights by Defendants’ retention and ongoing storage of their blood samples; 4) a claim for\\ndamages, as well as injunctive and declaratory relief, based on the alleged violation of the\\nparents’ substantive due process rights by Defendants’ retention and ongoing storage of their\\nchildren’s blood samples; 5) a claim for damages based on the alleged violation of the children’s\\nFourth Amendment rights when their blood samples were collected and screened for diseases;\\nand 6) a claim for damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the children’s Fourth Amendment rights by Defendants’ retention and ongoing\\nstorage of their blood samples.\\n\\n We will first address Plaintiffs’ four substantive due process claims, and then address\\ntheir two Fourth Amendment claims.\\n\\n\\n\\n\\n 6With respect to the other two standing requirements, there is no question that Plaintiffs’ alleged harms\\nhave “‘a causal connection [with] the conduct complained of’ [and are] ‘fairly . . . trace[able] to the challenged\\naction of [Defendants], and not . . . th[e] result [of] the independent action of some third party not before the court.’”\\nShearson, 725 F.3d at 592 (quoting Lujan, 504 U.S. at 560–61). The causation requirement is therefore met with\\nrespect to these claims. And because it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be\\n‘redressed by a favorable decision,’” the redressability requirement is met as well. Id. (quoting Lujan, 504 U.S. at\\n561).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 15\\n\\n\\nII. Substantive Due Process Claims\\n\\n Standard of Review\\n\\n “We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss for\\nfailure to state a claim.” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012). To\\nsurvive a motion to dismiss, a complaint “does not need detailed factual allegations,” but should\\nidentify “more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555\\n(2007). A complaint also “must contain sufficient factual matter, accepted as true, to ‘state a\\nclaim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting\\nTwombly, 550 U.S. at 570).\\n\\n Analysis\\n\\n Plaintiffs’ substantive due process claims involve Defendants’ alleged violations of both\\nthe children’s right to direct their own medical care and the parents’ rights to direct the medical\\ncare of their children. Plaintiffs claim that the parents’ and children’s rights were violated when\\nthe children’s blood was drawn and screened for diseases, as well as by Defendants’ retention\\nand ongoing storage of the children’s blood samples and the threat of future use of those\\nsamples. This section will address each of these issues.\\n\\n 1. Alleged Violation of the Children’s Substantive Due Process Rights When Blood\\n Samples Were Collected\\n\\n Plaintiffs seek damages based on the alleged violation of the children’s substantive due\\nprocess rights when their blood samples were collected and screened for diseases. Defendants\\nclaim that damages are precluded by state sovereign immunity and qualified immunity.\\n\\n State sovereign immunity generally bars damages actions against states from proceeding\\nin federal court. Maben v. Thelen, 887 F.3d 252, 270 (6th Cir. 2018).7 This immunity also\\ngenerally applies to “state agents and instrumentalities,” Regents of Univ. of Calif. v. Doe,\\n\\n\\n 7State sovereign immunity is sometimes called “Eleventh Amendment” immunity because that amendment\\nreaffirmed the doctrine after it was thrown into doubt; however, this immunity emanates from our overall\\nconstitutional framework rather than existing in any one amendment. See Pennhurst State School & Hosp. v.\\nHalderman, 465 U.S. 89, 97–98 (1984).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 16\\n\\n\\n519 U.S. 425, 429 (1997), including state officials sued in their official capacities. Maben,\\n887 F.3d at 270. For this reason, Plaintiffs cannot seek damages from MDHHS, the Neonatal\\nBiobank,8 or any individual Defendant sued in his or her official capacity.\\n\\n “The Eleventh Amendment, however, does not bar suits for damages against officers in\\ntheir personal capacity under § 1983.” Maben, 887 F.3d at 270 (citing Hafer v. Melo, 502 U.S.\\n21, 25–27 (1991)). Thus, Plaintiffs’ claims seeking damages against Nick Lyon, Dr. Sandip\\nShah, Dr. Sarah Lyon-Callo, Mary Kleyn, and Dr. Antonio Yancey are not barred by Eleventh\\nAmendment immunity.\\n\\n These claims were nevertheless properly dismissed because the individual defendants are\\nentitled to qualified immunity. To overcome qualified immunity, Plaintiffs must show that “the\\nright at issue was clearly established at the time of [the] defendant’s alleged misconduct.”\\nBarker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011). “To be clearly established, a right must\\nbe sufficiently clear ‘that every reasonable official would [have understood] that what he is doing\\nviolates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft v. al-Kidd,\\n563 U.S. 731, 741 (2011)). Plaintiffs have failed to make the required showing to overcome\\nqualified immunity.\\n\\n Plaintiffs concede that “[t]his is a case of first impression” involving “a novel\\ncircumstance alleged to be occurring in violation of the Fourth and Fourteenth Amendments.”\\n(Appellants’ Br. ix.) Plaintiffs are correct that the Supreme Court has held that “a competent\\n\\n\\n 8Plaintiffs’ Complaint assert that Michigan Neonatal Biobank and its Director, Dr. Antonio Yancey, are\\nboth state actors suable under § 1983. The Neonatal Biobank defines itself as a “nonprofit corporation that receives\\nall or nearly all of its funding from the State of Michigan,” and the state relies on the Neonatal Biobank to\\n“indefinitely store the Infants’ blood” after the blood samples are screened for diseases. (Appellee Biobank Br. 3,\\n4.) The Neonatal Biobank’s brief never directly addresses whether it is an arm of the state and thus seems to\\nconcede that it is. At oral argument, counsel for the Neonatal Biobank explained that the Neonatal Biobank was\\ncreated by the state but stated that he did not believe any state employees or officers were on its board of directors.\\n(Mar. 13, 2018, Oral Arg. 28:52–29:35.) We have held that an entity created by the state law “to carry out state\\nfunctions” is sufficiently affiliated with the state as to constitute an arm of the state. Estate of Ritter v. Univ. of\\nMichigan, 851 F.2d 846, 850 (6th Cir. 1988). The Supreme Court has noted that “the vulnerability of the State’s\\npurse [is] the most salient factor in Eleventh Amendment determinations.” Hess v. Port Auth. Trans-Hudson Corp.,\\n513 U.S. 30, 48 (1994). Michigan created the Neonatal Biobank to carry out the state function of storing the\\nInfants’ blood, which the state funds the Neonatal Biobank to do. The fact that the state funds the Neonatal Biobank\\nsuggests that the state’s purse would be vulnerable if Plaintiffs were to recover against the Neonatal Biobank. Based\\non these considerations, the Neonatal Biobank is an arm of the state.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 17\\n\\n\\nperson has a constitutionally protected liberty interest in refusing unwanted medical treatment.”\\nCruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 277 (1990). However, the Court has\\nnever so held for incompetent persons or minors, and it has in fact strongly suggested that this\\nright does not extend to minor children. Id. at 279 (noting that in a prior decision the Court\\n“certainly did not intimate that . . . a minor child, after commitment, would have a liberty interest\\nin refusing treatment”). Plaintiffs have therefore failed to show that “the right at issue was\\nclearly established at the time of [Defendants’] alleged misconduct.” Barker, 649 F.3d at 433.\\n\\n Thus, each of Plaintiffs’ damages claims asserting a violation of the children’s\\nsubstantive due process rights when their blood was collected and screened for diseases is barred\\nby either state sovereign immunity or qualified immunity. Because these claims cannot be\\nmaintained against Defendants in light of the relevant immunities, we may affirm the district\\ncourt without deciding whether the children’s substantive due process rights were actually\\nviolated. See Pearson v. Callahan, 555 U.S. 223, 237 (2009). Nevertheless, under Pearson v.\\nCallahan, we may still “exercise [our] sound discretion” to decide whether a constitutional\\nviolation occurred. 555 U.S. at 236.9\\n\\n In this instance, we will exercise our discretion to decide the underlying constitutional\\nquestion because this is an issue for which “a discussion of why the relevant facts do not violate\\nclearly established law make[s] it apparent that in fact the relevant facts do not make out a\\nconstitutional violation at all.” Id. The qualified immunity discussion above makes it apparent\\nthat the children’s substantive due process rights were not violated. As mentioned, the Supreme\\nCourt has strongly suggested that minor children lack a liberty interest in directing their own\\nmedical care. Cruzan, 497 U.S. at 279; see also Schall v. Martin, 467 U.S. 253, 265 (1984)\\n(“Children, by definition, are not assumed to have the capacity to take care of themselves.”).\\n\\n 9Defendants argue that we should not address Plaintiffs’ substantive due process claims because Plaintiffs\\nalso raise Fourth Amendment claims arising out of the drawing of the children’s blood. Defendants cite the\\nSupreme Court’s statement that “[w]here a particular Amendment provides an explicit textual source of\\nconstitutional protection against a particular sort of government behavior, that Amendment, not the more\\ngeneralized notion of substantive due process, must be the guide for analyzing these claims.” Cty. of Sacramento v.\\nLewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)). However, Lewis is\\ndistinguishable because it concerned the vaguer “shocks the conscience” test of substantive due process, rather than\\na claim relating to a specific fundamental right like the right to direct one’s medical care. Because the substantive\\ndue process rights that Plaintiffs assert are analytically distinct from their Fourth Amendment claims, we may\\naddress both types of claims separately.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 18\\n\\n\\nInstead, children must instead rely on parents or legal guardians to do so until they reach the age\\nof competency. See Parham v. J. R., 442 U.S. 584, 602 (1979) (“The law’s concept of the family\\nrests on a presumption that parents possess what a child lacks in maturity, experience, and\\ncapacity for judgment required for making life’s difficult decisions.”); Schall, 467 U.S. at 265\\n(recognizing that children “are assumed to be subject to the control of their parents.”).\\nAccordingly, any substantive due process rights related to directing the medical care of children\\ndevolve upon the parents or legal guardians of the children, rather than the children themselves.\\nThe children’s substantive due process rights were therefore not violated when Defendants drew\\ntheir blood and screened it for diseases, providing another basis upon which to affirm the district\\ncourt’s dismissal of these claims.\\n\\n 2. Alleged Violation of the Parents’ Substantive Due Process Rights When Blood\\n Samples Were Collected\\n\\n Plaintiffs seek damages based on Defendants’ alleged violation of the parents’\\nsubstantive due process rights when their children’s blood samples were collected and screened\\nfor diseases. As with the previous claim, this claim is for damages and thus can only be brought\\nagainst the state officers in their individual capacities due to state sovereign immunity. And as\\nwith the previous claim, the state officers are entitled to qualified immunity.\\n\\n To overcome qualified immunity, Plaintiffs must show that “the right at issue was clearly\\nestablished at the time of the defendant’s alleged misconduct.” Barker, 649 F.3d at 433.\\nPlaintiffs acknowledge that “there is little case law on the same factual circumstances of this\\ncase.” (Appellants’ Br. 25.) Plaintiffs further concede that “Supreme Court precedent . . . has\\nnot delineated the parameters of a ‘parent’s right to parent’ in a way that can be neatly applied to\\nnew sets of facts.” (Appellants’ Br. 24 (quoting R. 50, Order, ID# 831 (citing Doe v. Heck, 327\\nF.3d 492, 519 (7th Cir. 2003))).) Nevertheless, Plaintiffs argue that “nonconsensual medical\\ntreatment and testing violating the Fourteenth Amendment is not a completely first impression\\nmatter in this country.” (Appellants’ Br. 20.)\\n\\n It is true that the Supreme Court has recognized parents’ substantive due process right to\\n“direct the upbringing and education of children under their control.” Pierce v. Soc’y of Sisters,\\n268 U.S. 510, 534–35 (1925). However, this precedent does not address the issue of parents’\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 19\\n\\n\\nright to control their children’s medical care and therefore does not demonstrate that Defendants\\nviolated Plaintiffs’ clearly established rights. See Reichle, 566 U.S. at 664. The case law in this\\narea is sparse; Plaintiffs cite only a Tenth Circuit case and a district court case touching on the\\nissue of parents’ right to control their children’s medical care. Dubbs v. Head Start, Inc.,\\n336 F.3d 1194 (10th Cir. 2003); Beleno v. Lakey, 306 F. Supp. 3d 930 (W.D. Tex. 2009). In\\nDubbs, the Tenth Circuit held that the district court had erroneously applied the “shocks the\\nconscience” standard to a claim similar to the instant claim, but “decline[d] to resolve the\\ndifficult questions regarding the standard to be applied.” 336 F.3d at 1203–04. Plaintiffs are\\ntherefore incorrect that even one court of appeals case has squarely addressed the question before\\nus. And even if it were, “[t]his court has stated that out-of-circuit precedent clearly establishes\\nrights only in ‘extraordinary case[s]’” involving rights that are “clearly foreshadowed by\\napplicable direct authority,” which is not true of the rights at issue in this case. Hearring v.\\nSliwowski, 712 F.3d 275, 282 (6th Cir. 2013) (quoting Ohio Civil Serv. Emps. Ass’n v. Seiter,\\n858 F.2d 1171, 1177 (6th Cir. 1988)).\\n\\n State sovereign immunity and qualified immunity therefore bar all of Plaintiffs’ claims\\nalleging that the parents’ substantive due process rights were violated when Defendants drew\\ntheir children’s blood and screened it for diseases, and we decline to exercise our discretion to\\nreach the merits of this issue. See Pearson, 555 U.S. at 236. In contrast with the issue discussed\\nin the previous section, we cannot easily say, based on the allegations in the Complaint, that the\\ndrawing of the children’s blood “do[es] not make out a constitutional violation” of the parents’\\nsubstantive due process right to direct their children’s medical care. Id. The Supreme Court has\\nsuggested that we might decline to exercise our jurisdiction in situations where “it is plain that a\\nconstitutional right is not clearly established but far from obvious whether in fact there is such a\\nright.” Pearson, 555 U.S. at 237. Because this issue presents such a situation, we decline to rule\\non whether the initial drawing of blood violated the parents’ substantive due process rights, and\\nwe affirm the district court’s judgment solely on qualified immunity and state sovereign\\nimmunity grounds.10\\n\\n\\n\\n 10We note as well that although these Plaintiffs lack standing to pursue prospective relief on their claims\\narising out of the initial drawing of blood, future plaintiffs may be able to demonstrate a risk of future harm that is\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 20\\n\\n\\n 3. Alleged Violation of the Children’s Substantive Due Process Rights Based on\\n Ongoing Storage of Blood Samples\\n\\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the children’s substantive due process right to direct their own medical care by\\nDefendants’ retention of the children’s blood samples after the samples have been screened for\\ndiseases, by Defendants’ transfer of the samples to the Neonatal Biobank, and by Defendants’\\nongoing storage of the samples for further use by the state. As with the previous claims, state\\nsovereign immunity and qualified immunity prevent Plaintiffs from obtaining damages against\\nDefendants in connection with this claim.\\n\\n Unlike with the previous claims, however, Plaintiffs have standing to seek prospective\\nrelief for the alleged ongoing violation of the children’s rights. State sovereign immunity\\nprevents Plaintiffs from seeking such relief against MDHHS and the Neonatal Biobank because\\nthese entities are state instrumentalities that are considered “the state and its departments.”\\nThiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir.\\n1993) (citing Pennhurst, 465 U.S. at 100–01). But state sovereign immunity is subject to a few\\nexceptions, one of which is the doctrine first announced in Ex parte Young, 209 U.S. 123 (1908).\\n“[T]he Supreme Court announced an exception to Eleventh Amendment sovereign immunity in\\nEx parte Young for claims [under federal law] for injunctive relief against individual state\\nofficials in their official capacities.” Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th\\nCir. 2013). We have further explained:\\n\\n Under the Ex parte Young exception, a federal court can issue prospective\\n injunctive and declaratory relief compelling a state official to comply with federal\\n law, Will [v. Mich. Dept. of State Police, 491 U.S. 58,] 71 & n. 10 [(1989)],\\n regardless of whether compliance might have an ancillary effect on the state\\n treasury, Edelman [v. Jordan, 415 U.S. 651,] 667–68 [(1974)]; Doe v. Wigginton,\\n\\n“concrete, particularized, and actual or imminent” enough to give them standing to pursue such relief. Shearson,\\n725 F.3d at 592 (quoting Clapper, 568 U.S. at 409). Such plaintiffs would only need to demonstrate a “substantial\\nrisk” that the harm will occur. Clapper, 568 U.S. at 414 n.5 (quoting Monsanto Co., 561 U.S. at 153). For example,\\nfuture plaintiffs might consist of individuals who are pregnant or seeking to become pregnant. If these potential\\nplaintiffs can demonstrate more than mere “‘some day’ intentions” to bear children, they will likely have standing to\\npursue prospective relief relating to the risk that their future children’s blood will be drawn at birth. Lujan. 504\\nU.S. at 564. The possibility of such a case, which would require us to address the merits of this issue, further\\nsupports our decision not to exercise our discretion to decide the issue in this case, where such decision would seem\\nto be “an essentially academic exercise.” Pearson, 555 U.S. at 237.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 21\\n\\n\\n 21 F.3d 733, 737 (6th Cir. 1994). “It is beyond dispute that federal courts have\\n jurisdiction over suits to enjoin state officials from interfering with federal rights.”\\n Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d\\n 490 (1983) (citing Ex parte Young, 209 U.S. at 160–62, 28 S.Ct. 441). The Ex\\n parte Young exception does not, however, extend to any retroactive relief. Quern\\n v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).\\n\\nS & M Brands, Inc. v. Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008).11\\n\\n In this case, the Ex parte Young exception applies only to the individual state officers—\\nNick Lyon, Dr. Sandip Shah, Dr. Sarah Lyon-Callo, Mary Kleyn, and Dr. Antonio Yancey—and\\nonly to the extent that Plaintiffs’ claims are brought against these individuals in their official\\ncapacities. The Ex parte Young exception does not permit Plaintiffs to seek damages or any\\nother retroactive relief against these Defendants, but it does permit Plaintiffs to seek prospective\\ninjunctive and declaratory relief against them. In sum, Plaintiffs’ claims fit within the Ex parte\\nYoung exception to the extent that they relate to the ongoing storage of the children’s blood\\n(which Plaintiffs allege is a “continuing violation of” the children’s substantive due process\\nrights) and they seek prospective relief aimed at stopping this alleged violation.\\n\\n Thus, state sovereign immunity does not bar Plaintiffs’ claims for prospective relief\\nagainst the individual Defendants in their official capacities arising out of the ongoing storage of\\nthe children’s blood. Nor are Plaintiffs’ claims seeking prospective relief against these\\nDefendants barred by qualified immunity, as “qualified immunity only immunizes defendants\\nfrom monetary damages”—not injunctive or declaratory relief. Williams v. Com. of Ky., 24 F.3d\\n1526, 1541 (6th Cir. 1994). We can therefore proceed to the merits of Plaintiffs’ claim that\\nDefendants’ retention and ongoing storage of their blood samples violates the children’s\\nsubstantive due process rights.\\n\\n\\n\\n 11Another reason that claims against the state and its agencies cannot be maintained under § 1983 is that\\nthese entities are not suable “persons” for purposes of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S.\\n58, 64–66 (1989). By contrast, “a state official in his or her official capacity, when sued for injunctive relief, [is] a\\nperson under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the\\nState.’” Id. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1989) and citing Ex parte Young, 209\\nU.S. at 159–60). The Supreme Court has explained that “[t]his distinction is ‘commonplace in sovereign immunity\\ndoctrine,’ L. Tribe, American Constitutional Law § 3–27, p. 190, n. 3 (2d ed. 1988), and would not have been\\nforeign to the 19th-century Congress that enacted § 1983.” Id.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 22\\n\\n\\n This claim fails because the children’s substantive due process rights were not violated.\\nAs discussed above, children cannot control their own medical care and must instead rely on\\nparents or legal guardians to do so until they reach the age of competency. See Cruzan, 497 U.S.\\nat 279; Schall, 467 U.S. at 265; Parham, 442 U.S. at 602. Therefore, any substantive due\\nprocess rights related to their care devolve upon the parents or legal guardians rather than the\\nchildren themselves. For this reason, we affirm the district court’s dismissal of the children’s\\nsubstantive due process claims. The rights of the parents or guardians are discussed in the\\nfollowing section.\\n\\n 4. Alleged Violation of the Parent’s Substantive Due Process Rights Based on\\n Ongoing Storage of Blood Samples\\n\\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the parent’s substantive due process rights to direct the medical care of their children\\nby Defendants’ retention, transfer, and ongoing storage of the children’s blood samples.\\n\\n For the reasons already discussed, state sovereign immunity and qualified immunity\\nprevent Plaintiffs from obtaining damages against Defendants. Plaintiffs cannot seek prospective\\nrelief against MDHHS or the Neonatal Biobank, but they can seek such relief against the\\nindividual Defendants in their official capacities. See Thiokol Corp., 987 F.2d at 381. We\\ntherefore proceed to the merits of Plaintiffs’ claim that Defendants’ ongoing storage of their\\nchildren’s blood samples violates the parents’ substantive due process rights.\\n\\n Parents possess a fundamental right to make decisions concerning the medical care of\\ntheir children. It is well established that a parent has a substantive due process right “to direct\\nthe education and upbringing of [his] children.” Washington v. Glucksberg, 521 U.S. 702, 720\\n(1997) (citing Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510\\n(1925)). Otherwise stated, a parent has a “fundamental right to make decisions concerning the\\ncare, custody, and control of her” children, Troxel v. Granville, 530 U.S. 57, 72 (2000), which\\nwould seem to naturally include the right to direct their children’s medical care. See Parham,\\n442 U.S. at 604 (“[Parents] retain plenary authority to seek [at least some forms of medical] care\\nfor their children [including institutionalization], subject to a physician’s independent\\nexamination and medical judgment.”); PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197 (10th\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 23\\n\\n\\nCir. 2010) (recognizing that although “[t]he Supreme Court has . . . never specifically defined the\\nscope of a parent’s right to direct her child’s medical care,” “precedent reasonably suggests that\\nthe Due Process Clause provides some level of protection for parents’ decisions regarding their\\nchildren’s medical care”).\\n\\n The right of parents to direct the medical care of their children has further support in the\\ncase law as well. In Cruzan, the Supreme Court held that “a competent person has a\\nconstitutionally protected liberty interest in refusing unwanted medical treatment.” 497 U.S. at\\n278. As discussed, children do not possess the right to make medical decisions for themselves\\nbecause “[c]hildren, by definition, are not assumed to have the capacity to take care of\\nthemselves.” Schall v. Martin, 467 U.S. 253, 265 (1984). However, this does not imply that no\\none has a fundamental right to direct the medical care of children. Rather, “[t]he law’s concept\\nof the family rests on a presumption that parents possess what a child lacks in maturity,\\nexperience, and capacity for judgment required for making life’s difficult decisions.” Parham,\\n442 U.S. at 602. Children “are assumed to be subject to the control of their parents.” Schall, 467\\nU.S. at 265. Thus, it is logically the parents who possess a fundamental right to direct the\\nmedical care of their children. For these reasons, parents’ substantive due process right “to make\\ndecisions concerning the care, custody, and control” of their children includes the right to direct\\ntheir children’s medical care. 530 U.S. at 72.\\n\\n The existence of a fundamental right means that “[g]overnment actions that burden the\\nexercise of [the right] are subject to strict scrutiny, and will be upheld only when they are\\nnarrowly tailored to a compelling governmental interest.” Seal v. Morgan, 229 F.3d 567, 574–75\\n(6th Cir. 2000). This does not mean that parents’ control over their children is without limit. See\\nSchall, 467 U.S. at 265 (“[I]f parental control falters, the State must play its part as parens patriae\\n[and in such circumstances] the juvenile’s liberty interest may . . . be subordinated to the State’s\\n‘parens patriae interest in preserving and promoting the welfare of the child.’” (quoting Santosky\\nv. Kramer, 455 U.S. 745, 766 (1982))). Indeed, limitations on parents’ control over their\\nchildren are particularly salient in the context of medical treatment. See, e.g., Jacobson v.\\nMassachusetts, 197 U.S. 11, 38 (1905) (holding that a compulsory vaccination law with only\\nmedical exemptions did not violate any federal constitutional right); Nikolao v. Lyon, 875 F.3d\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 24\\n\\n\\n310, 316 (6th Cir. 2017) (holding that a compulsory vaccination law with some religious\\nexemptions did not violate the First Amendment).12 The state’s interest in preserving the welfare\\nof children is at its zenith when the life of the child is at stake, and in such circumstances the\\nstate in its role of parens patriae may subordinate the interest of the child’s parents to its own\\ninterest in keeping the child alive. See Schall, 467 U.S. at 265. A program to screen children for\\nlife-threatening diseases at birth may be an example of a state’s proper exercise of its parens-\\npatriae role, provided that the state operates the program for purely benevolent motives. See\\nJacobson, 197 U.S. at 38; Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (“[T]he state has a\\nwide range of power for limiting parental freedom and authority in things affecting the child’s\\nwelfare . . . .”). It may well be that the NSP would survive strict scrutiny to the extent that it\\ninvolves drawing the children’s blood and screening for life-threatening diseases. However, as\\nstated, we decline to rule on this aspect of the NSP because Plaintiffs’ substantive due process\\nclaims relating to the initial drawing of blood and screening for diseases are barred by state\\nsovereign immunity and qualified immunity.\\n\\n The only remaining question is whether Defendants’ subsequent retention, transfer, and\\nstorage of the samples violate the parents’ fundamental rights. Plaintiffs allege facts sufficient to\\nstate plausible claims for relief on this issue, and we therefore reverse the district court’s\\ndismissal of these claims.\\n\\n Plaintiffs allege that after screening children’s blood samples for diseases, Defendants\\nretain the samples, transfer the samples to the Neonatal Biobank, and store the samples\\nindefinitely for further use by the state or third parties. Plaintiffs allege that these actions are\\n\\n\\n\\n\\n 12Plaintiffs argue that these cases only stand for the proposition that “[l]aws that are intended to prevent a\\nperson from harming others by disease contagion can be justified as an exercise of police power” and that the cases\\ndo not govern in this instance because none of the diseases screened for in the program at issue are contagious.\\n(Appellants’ Br. 28–29.) This argument ignores much precedent to the effect that the state may protect children\\nfrom danger created by their parents. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1994) (“Acting to guard\\nthe general interest in youth’s well being, the state as parens patriae may restrict the parent’s control . . . in many []\\nways.”). Plaintiffs’ argument is essentially that a parent may not place other parents’ children in danger via her\\ndecisions as to her child’s medical care, see Jacobson, 197 U.S. at 38, but that a parent can put her own child in\\ndanger via such decisions. Such a holding would be deeply unsettling; fortunately, neither the Constitution nor any\\ncases interpreting the Constitution persuade us that it is correct.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 25\\n\\n\\nundertaken without informed parental consent.13 Because this case is before us on appeal from a\\nmotion to dismiss, we must take Plaintiffs’ factual allegations as true. Iqbal, 556 U.S. at 678.\\nTaking these allegations as true, Defendants’ actions constitute a denial of the parents’\\nfundamental right to direct the medical care of their children, and their actions must survive strict\\nscrutiny.\\n\\n On remand, Defendants will be free to produce evidence demonstrating that the parents\\nconsented to some or all of Defendants’ actions vis-à-vis the children’s blood samples. To the\\nextent that the parents provided informed consent to Defendants’ actions, no fundamental liberty\\ninterest would have been impinged because the parents would not have been denied the right to\\ncontrol their children’s medical care, although it may be that merely “present[ing] [parents] with\\nan option to opt out of having their child’s blood used for research” as the district court seemed\\nto believe occurred here, (R. 50, Order Granting Motions to Dismiss, Page ID# 838), is not\\nsufficient if the default is for the state to use the samples for research. We note that consent to\\nallow the state to conduct research on the children’s blood samples does not necessarily imply\\nconsent to allow the state to sell the blood samples to third parties. Many questions about the\\nnature and scope of parental consent remain, and the case should proceed to discovery so that the\\nparties may produce evidence relating to these questions.\\n\\n On remand, the parties will also be able to produce evidence relating to whether\\nDefendants had a compelling interest in retaining, transferring, and storing the children’s blood\\nsamples after screening them for diseases, and whether Defendants’ means for achieving their\\ninterest were narrowly tailored. Based on Plaintiffs’ allegations, it seems unlikely that\\nDefendants will be able to demonstrate a compelling interest, as the health of the child is no\\n\\n\\n 13The Complaint alleges that Plaintiffs did not give informed consent at all. Plaintiffs also allege that any\\nconsent the parents purported to give was not general enough to permit all of Defendants’ actions with respect to the\\nsamples. The district court seemed to suggest that the parents’ claims failed because they consented to the use of\\ntheir children’s samples for research. (R. 50, Order Granting Motions to Dismiss, Page ID# 838.) To be clear,\\nPlaintiffs do not concede that they consented to the state’s retention, transfer, storage, or use of their children’s\\nblood samples. To the extent the district court held that Plaintiffs made such a concession, it erred in refusing to\\n“accept[] [Plaintiffs’ factual allegations] as true,” as the posture of the case requires. Iqbal, 556 U.S. at 678. We\\nemphasize that a fundamental right is at stake; it will be essential on remand to determine the precise nature and\\nscope of any parental consent that occurred. Based on the facts alleged, Plaintiffs did not consent to all of\\nDefendants’ actions with respect to the samples.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 26\\n\\n\\nlonger at stake after the samples have been tested for life-threatening diseases.14 Plaintiffs allege\\nthat Defendants conduct research on children’s stored blood samples and seek to derive profit\\nfrom the children’s samples by selling them to third parties. On remand, Defendants may deny\\nthat they have a present or future commercial interest in the blood samples (which, up to this\\npoint in the litigation, they have not done) and may present evidence demonstrating other\\npurposes for retaining, transferring, and storing the samples.\\n\\n We therefore reverse the district court’s dismissal of these claims and remand for further\\nproceedings consistent with this opinion.\\n\\n Summary\\n\\n Because MDHHS, the Neonatal Biobank, and every individual Defendant sued in his or\\nher official capacity are entitled to state sovereign immunity, dismissal with respect to Plaintiffs’\\nsubstantive due process claims seeking damages from them was proper. The district court also\\nproperly dismissed Plaintiffs’ claims seeking damages against every individual Defendant in his\\nor her individual capacity because they were entitled to qualified immunity. The district court\\nproperly dismissed Plaintiffs’ claims relating to the substantive due process rights of the children\\nbecause these claims fail on their merits. However, the district court erred in dismissing\\nPlaintiffs’ claims seeking prospective relief against the individual Defendants in their official\\ncapacities relating to their alleged violation of the parents’ substantive due process rights in\\nconnection with Defendants’ retention and ongoing storage of the blood samples, because these\\nclaims are not subject to qualified immunity and fall within the Ex parte Young exception to state\\nsovereign immunity. The parents have a fundamental right to direct the medical care of their\\nchildren, and their claims may go forward so that the parties can present evidence related to\\nDefendants’ actions and the legal implications of those actions. Specifically, the questions on\\nremand will be whether the evidence demonstrates that Defendants’ actions interfered with the\\n\\n 14Plaintiffs concede that the state may have policies requiring parents to be notified but allege that these\\npolicies are not always followed. The parties will have the opportunity on remand to introduce evidence as to these\\npolicies and the extent to which Defendants followed them, and we wish to emphasize the importance of notifying\\nparents as to any medical procedures that may have been conducted on their children and the importance of\\nuniformity and consistency in how parents are notified. See Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003)\\n(holding the state denied parents’ substantive due process rights by conducting a custodial interview of a child\\n“without notifying or obtaining the consent of his parents”).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 27\\n\\n\\nparents’ right to direct their children’s medical care; and, to the extent they did interfere with the\\nparents’ fundamental rights, whether those actions survive strict scrutiny.\\n\\n Thus, we affirm the district court’s dismissal of all of Plaintiffs’ substantive due process\\nclaims except their claims against the individual Defendants in their official capacities to the\\nextent that those claims seek injunctive and declaratory relief in connection with the alleged\\nviolation of the parent’s substantive due process right by Defendants’ retention and ongoing\\nstorage of the blood samples. With respect to those latter claims, we reverse and remand the\\ncase for further proceedings consistent with this opinion.\\n\\nIII. Fourth Amendment Claims\\n\\n Standard of Review\\n\\n “We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss for\\nfailure to state a claim.” Casias, 695 F.3d at 43. To survive a motion to dismiss, a complaint\\n“does not need detailed factual allegations,” but should identify “more than labels and\\nconclusions.” Twombly, 550 U.S. at 555 (citations omitted). A complaint also “must contain\\nsufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”\\nIqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).\\n\\n Analysis\\n\\n As discussed above, Plaintiffs have standing to bring only two categories of Fourth\\nAmendment claims: claims for damages resulting from Defendants’ alleged violation of the\\nchildren’s Fourth Amendment rights when their blood samples were collected and screened for\\ndiseases; and claims for damages, as well as injunctive and declaratory relief, resulting from the\\nalleged violation of the children’s Fourth Amendment rights by Defendants’ retention, transfer,\\nand storage of the blood samples. We will address these claims in turn.\\n\\n 1. Alleged Violation of the Children’s Fourth Amendment Rights When Blood\\n Samples Were Collected\\n\\n Plaintiffs seek damages based on the alleged violation of the children’s Fourth\\nAmendment rights when their blood samples were collected and screened for diseases, arguing\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 28\\n\\n\\nthat Defendants’ actions constituted a search for which a warrant was required. These damages\\nclaims suffer the same defects as all of the other damages claims already discussed. Namely,\\nstate sovereign immunity bars damages actions against all Defendants except the individual\\nDefendants sued in their individual capacities, and qualified immunity bars damages actions\\nagainst any of the individual Defendants sued in their individual capacities.\\n\\n With respect to qualified immunity, Plaintiffs concede that “[t]his is a case of first\\nimpression” involving “a novel circumstance alleged to be occurring in violation of the Fourth\\nand Fourteenth Amendments.” (Appellants’ Br. ix.) Even assuming that the children’s Fourth\\nAmendment rights were violated by the initial drawing of their blood, these rights were not\\nclearly established. On their face, these claims might appear to present a closer call than the\\nprevious claims, in that the Supreme Court has held that drawing blood does constitute a Fourth\\nAmendment violation in some circumstances. Schmerber v. California, 384 U.S. 757, 767–68\\n(1966) (holding that when a police officer directs that a suspect’s blood be drawn in order to\\nproduce evidence in connection with a criminal investigation, the drawing of blood “plainly\\nconstitute[s] [a] search[] of [a] ‘person[],’” and is therefore subject to “respected relevant Fourth\\nAmendment standards of reasonableness”). However, this does not indicate a clearly established\\nright, as this case is far from a straightforward application of Schmerber. After Schmerber, it is\\ntrue that any reasonable medical professional knows or should know that such professionals\\ncannot draw blood for law enforcement purposes without a medical reason or the patient’s\\nconsent, unless they obtain a search warrant. But Defendants claim that their motivation for\\ndrawing the children’s blood—or at least part of their motivation—is to provide the children with\\nmedical care.\\n\\n Because our case law does not clearly establish in what circumstances the Fourth\\nAmendment bars a medical professional from drawing a child’s blood for medical purposes\\nwithout parental notification or consent—or whether such medical purposes must be the primary\\nor predominant motivation for the drawing of blood—the individual Defendants in this case are\\nentitled to qualified immunity. In Schmerber, the defendant’s blood was drawn at the direction\\nof a police officer seeking evidence that the defendant had driven while intoxicated. 384 U.S. at\\n758–59. By contrast, Plaintiffs have never alleged that the state had an evidence-gathering\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 29\\n\\n\\nmotive for the drawing of blood in this case. We have noted that there remains a substantial\\nquestion as to whether drawing blood for the purpose of screening for diseases constitutes a\\nsearch or seizure for Fourth Amendment purposes. See Hearring v. Sliwowski, 712 F.3d 275,\\n281 (6th Cir. 2013) (“This court has not taken a definitive position on whether the Fourth\\nAmendment’s protection against unreasonable searches applies to the provision of medical\\nservices by government-employed health-care professionals.”). In Hearring, we held that a\\ndefendant nurse was entitled to qualified immunity because “existing precedents did not give\\n[her] fair warning that her medical assessments were subject to the Fourth Amendment’s\\nreasonableness requirement, and accordingly the right at issue was not clearly established.” Id.\\nat 282–83. We did not reach the merits of the plaintiff’s claim in Hearring, nor have we settled\\nthis issue in any decision after Hearring. Id. Thus, Defendants are entitled to qualified\\nimmunity because Plaintiffs have failed to show that “the right at issue was clearly established at\\nthe time of [their] alleged misconduct.” Barker, 649 F.3d at 433.\\n\\n State sovereign immunity and qualified immunity therefore bar all of Plaintiffs’ claims\\nalleging that the children’s Fourth Amendment rights were violated when Defendants drew their\\nblood and screened it for diseases, and we decline to exercise our discretion to decide whether\\nthese actions actually violated the children’s Fourth Amendment rights. See Pearson, 555 U.S.\\nat 236. As our discussion of this issue in Hearring demonstrates, this is a situation where “it is\\nplain that a constitutional right is not clearly established but far from obvious whether in fact\\nthere is such a right.” Pearson, 555 U.S. at 237. We therefore decline to rule on whether the\\ninitial drawing of blood violated the children’s Fourth Amendment rights, and we affirm the\\ndistrict court solely on qualified immunity and state sovereign immunity grounds.15\\n\\n 2. Alleged Violation of the Children’s Fourth Amendment Rights Based on Ongoing\\n Storage of Blood Samples\\n\\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the children’s Fourth Amendment rights by Defendants’ retention of the blood\\n\\n 15We note again the possibility that future plaintiffs may have standing to seek prospective relief relating to\\nthe risk that their future children’s blood will be drawn at birth. See supra, footnote 10. This possibility further\\nsupports our decision not to exercise our discretion to decide the issue in this case, where such decision would seem\\nto be “an essentially academic exercise.” Pearson, 555 U.S. at 237.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 30\\n\\n\\nsamples after the samples have been screened for diseases, by Defendants’ transfer of the\\nsamples to the Neonatal Biobank, and by Defendants’ ongoing storage of the samples for further\\nuse by the state. Due to state sovereign immunity and qualified immunity, Plaintiffs cannot\\nrecover damages against Defendants. Due to state sovereign immunity, Plaintiffs cannot seek\\ninjunctive or declaratory relief against MDHHS or the Neonatal Biobank. See Thiokol Corp.,\\n987 F.2d at 381. But Plaintiffs can seek such prospective relief against the individual\\nDefendants in their official capacities. See id.\\n\\n We therefore proceed to the merits of Plaintiffs’ claims that Defendants’ ongoing storage\\nof their children’s blood samples violates the children’s Fourth Amendment rights. The district\\ncourt dismissed these ongoing seizure claims for lack of standing. For the reasons discussed\\nabove, this was error. In fact, Plaintiffs have stated plausible claims that the ongoing retention\\nand storage of the children’s blood samples for further use by the state violates the children’s\\nFourth Amendment rights. Accordingly, the district court erred in dismissing these claims, and\\nwe reverse and remand.\\n\\n First, we note that this claim is analytically distinct from the question raised in the\\nprevious section of whether drawing the children’s blood and screening it for diseases violated\\nthe children’s Fourth Amendment rights—a question that we decline to address in this opinion\\nand will not be before the district court on remand. It is not necessary to decide whether the\\ndrawing of blood was an unconstitutional search or seizure in order to decide whether the\\nretention, storage, or use of the blood samples violate the children’s Fourth Amendment rights.\\nThis is because Defendants’ ongoing storage and potential future use of the blood samples might\\nbe unconstitutional regardless of whether Defendants’ completed actions of drawing and\\nscreening the children’s blood for disease were constitutional. If drawing and screening the\\nblood was unconstitutional, it is still possible that the ongoing retention, storage, or use of the\\nsample constitutes a separate, independent violation. See Skinner, 489 U.S. at 616 (noting that\\nafter an unconstitutional blood draw occurs, “[t]he ensuing chemical analysis of the sample to\\nobtain physiological data is a further invasion of the tested employee’s privacy interests”\\n(emphasis added)). And if drawing and screening the blood was constitutional, it may still have\\nbecome an illegal seizure if Plaintiffs suffered a further, unlawful, deprivation of their interests at\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 31\\n\\n\\nsome later point. See, e.g., United States v. Jacobsen, 466 U.S. 109, 124–25 (1984) (holding that\\na legal seizure of a package became illegal when officers conducted a field test on it because the\\ntest “affect[ed] respondents’ possessory interests . . . by destroying a quantity of the powder\\n[thereby] convert[ing] what had been only a temporary deprivation of possessory interests into a\\npermanent one”).\\n\\n It is apparent in the case law that the duration of a seizure affects its constitutionality.\\nFor example, the Supreme Court has long recognized that what begins as a lawful seizure can\\nbecome unlawful if it continues for an unreasonable amount of time. See United States v. Place,\\n462 U.S. 696, 707–09 (1983) (“[T]he brevity of the invasion of the individual’s Fourth\\nAmendment interests is an important factor in determining whether the seizure is\\n[constitutional].”). This Court has similarly recognized that extended seizures pose unique\\nconstitutional problems. See United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005) (“[W]hile\\na Terry stop may be constitutionally permissible initially, it may become an impermissible\\n‘seizure if it occurs over an unreasonable period of time or under unreasonable circumstances.’”\\n(quoting United States v. Orsolini, 300 F.3d 724, 729–30 (6th Cir. 2002)); Farm Labor Org.\\nComm. v. Ohio State Highway Patrol, 308 F.3d 523, 546 (6th Cir. 2002) (holding that an officer\\npossessed reasonable suspicion that “would [have] permit[ted] [him] to detain the [plaintiffs’]\\ngreen cards . . . until the following day,” but that a “four-day detention of the[ir] green cards . . .\\nwas unreasonable in duration”).\\n\\n To evaluate the constitutionality of a seizure’s duration, it is necessary to consider\\nwhether the duration is “reasonably needed to effectuate those purposes [justifying the seizure].”\\nUnited States v. Sharpe, 470 U.S. 675, 685 (1985). It does not seem that the health of the child\\njustifies the state in taking any actions with respect to the blood samples after it has finished\\nscreening the samples for diseases. As discussed, Plaintiffs allege that Defendants conduct\\nresearch on children’s stored blood samples and seek to derive profit from the children’s samples\\nby selling them to third parties. If this is indeed Defendants’ purpose in retaining the children’s\\nblood samples, then their ongoing, indefinite seizure of the samples is unreasonable. For this\\nreason, Plaintiffs have plausibly stated a claim upon which relief can be granted, and the district\\ncourt erred in dismissing their Fourth Amendment claims relating to the ongoing storage and\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 32\\n\\n\\npotential future use of the blood samples. The case should proceed to discovery so that the\\nparties may produce evidence of the state’s purposes for retaining, storing, and using the\\nchildren’s blood samples after they have been screened for diseases.\\n\\n On remand, whether Plaintiffs consented to any aspect of Defendants’ retention, storage,\\nor future use of the blood samples will also affect whether there is an ongoing seizure in\\nviolation of the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)\\n(“It is [] well settled that one of the specifically established exceptions to the requirements of\\nboth a warrant and probable cause is a search that is conducted pursuant to consent.”).\\n\\n Summary\\n\\n Because MDHHS, the Neonatal Biobank, and every individual Defendant sued in his or\\nher official capacity are entitled to state sovereign immunity, dismissal with respect to Plaintiffs’\\nFourth Amendment claims seeking damages from them was proper. The district court also\\nproperly dismissed Plaintiffs’ claims seeking damages against every individual Defendant in his\\nor her individual capacity because they were entitled to qualified immunity. However, the\\ndistrict court erred in dismissing Plaintiffs’ claims seeking prospective relief against the\\nindividual Defendants in their official capacities relating to their alleged violation of the\\nchildren’s Fourth Amendment rights in connection with the ongoing storage, use, or transfer of\\nthe blood samples, because Plaintiffs have standing to bring these claims and they are not subject\\nto qualified immunity or state sovereign immunity. Plaintiffs have stated a plausible claim that\\nDefendants’ actions violated their Fourth Amendment rights.\\n\\n Thus, we affirm the district court’s dismissal of all of Plaintiffs’ Fourth Amendment\\nclaims except their claims against the individual Defendants in their official capacities to the\\nextent that those claims seek injunctive and declaratory relief in connection with Defendants’\\nongoing retention, transfer, and storage of the blood samples. With respect to those latter claims,\\nwe reverse and remand the case for further proceedings consistent with this opinion.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 33\\n\\n\\n CONCLUSION\\n\\n For the reasons set forth above, we AFFIRM IN PART and REVERSE IN PART the\\ndistrict court’s judgment and REMAND for further proceedings consistent with this opinion.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 34\\n\\n\\n _________________\\n\\n CONCURRENCE\\n _________________\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405229/\", \"author_raw\": \"CLAY, Circuit Judge\"}, {\"author\": \"ROGERS, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"ROGERS, Circuit Judge, concurring. I concur in full. However, with respect to the\\nplaintiffs’ standing for their damages claims, I would frame the analysis a little differently. In\\nany event, none of the damage suits may proceed anyway because of sovereign or qualified\\nimmunity, as the majority opinion explains.\\n\\n Most Article III standing analysis deals with whether a plaintiff has standing to seek\\ninjunctive or declaratory relief. If a plaintiff sues to stop government illegality, the allegedly\\nillegal government action must adversely affect the plaintiff, not someone else or the public at\\nlarge. Otherwise, the federal courts would serve as a council of review for the constitutionality\\nand legality of government actions. It is the power to resolve cases or controversies—and only\\nthat power—that gives the courts the power under Marbury v. Madison to review the\\nconstitutionality and legality of government actions.\\n\\n Damage suits are almost always cases or controversies because the relief sought, if\\ngranted, will inherently help the plaintiff. In contrast, a suit for injunctive relief against a\\ngovernment official is not a case or controversy if the injunctive relief sought does not benefit\\nthe plaintiff in particular. That is the thrust of cases like Lujan v. Defenders of Wildlife, 504 U.S.\\n555 (1992). In contrast, a plaintiff who wins a damages suit will inherently get relief that inures\\nspecially to the plaintiff. Thus a damages suit generally constitutes a case or controversy, even if\\nthe suit is frivolous, and even if the underlying cause of action (negligence, for instance) turns\\nout to fail for lack of causation or injury. There is standing because if the plaintiff gets the relief\\nsought, in the form of an award of court-ordered money damages to the plaintiff, the relief would\\nbenefit the plaintiff in particular.\\n\\n Thus a money damages suit is generally an Article III case or controversy. The only\\nexception is when Congress seeks unduly to circumvent the very separation-of-powers principle\\ninherent in the case-or-controversy requirement itself. Congress might try to do so by creating a\\ndamages cause of action for the violation of a right that is merely a right to have the government\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 35\\n\\n\\nobey some law, regardless of whom that law benefits. A statute creating such a “bounty” for\\ngetting the government to obey the law unconstitutionally circumvents the separation-of-powers\\nprinciple described above. “[A]n interest that is merely a ‘byproduct’ of the suit itself cannot\\ngive rise to a cognizable injury in fact for Article III standing purposes.” Vermont Agency of\\nNat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 773 (2000). In Vermont Agency, the Court\\nprovided the example of Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998),\\nwhere the Court explained that “a plaintiff cannot achieve standing to litigate a substantive issue\\nby bringing suit for the cost of bringing suit.” Id. at 107. Spokeo is best understood in this light.\\nSee Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016).\\n\\n The damages claims in this case are cases or controversies because the plaintiffs, if\\nsuccessful, would be awarded compensation. Further, this is not a case where Congress has\\nsought to circumvent Article III through something like a “bounty” for bringing suit to protect\\nother people or the public at large. That is enough to conclude that the damages claims in this\\ncase meet the Article III standing requirement.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405229/\", \"author_raw\": \"ROGERS, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"CLAY"},"judge2":{"kind":"string","value":"ROGERS"},"judge3":{"kind":"string","value":"CLAY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627976/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Adam KANUSZEWSKI, Et Al., Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal Biobank, Incorporated, AKA Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0122p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n ADAM KANUSZEWSKI, et al., ┐\n Plaintiffs-Appellants, │\n │\n │\n v. │\n > No. 18-1896\n │\n MICHIGAN DEPARTMENT OF HEALTH AND HUMAN │\n SERVICES; NICK LYON; SANDIP SHAH; SARAH LYON- │\n CALLO; MARY KLEYN; MICHIGAN NEONATAL │\n BIOBANK, INCORPORATED, aka Michigan Neonatal │\n Biorepository; ANTONIO YANCEY, │\n Defendants-Appellees. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Bay City.\n No. 1:18-cv-10472—Thomas L. Ludington, District Judge.\n\n Argued: March 13, 2019\n\n Decided and Filed: June 10, 2019\n\n Before: MERRITT, CLAY, and ROGERS, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for\nAppellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for\nAppellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, PEAR SPERLING\nEGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio\nYancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin,\nOFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees\nMichigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-\nCallo, and Mary Kleyn. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC,\nHemlock, Michigan, for Appellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY,\nDetroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy,\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 2\n\n\nJerold Lax, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees\nNeonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal\nBioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,\nMichigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon,\nSandip Shad, Sarah Lyon-Callo, and Mary Kleyn.\n\n CLAY, J., delivered the opinion of the court in which MERRITT and ROGERS, JJ.,\njoined. ROGERS, J. (pp. 34–35), delivered a separate concurrence.\n\n _________________\n\n OPINION\n _________________\n\n CLAY, Circuit Judge. Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and\nLynnette Wiegand, individually and as parent-guardians to their minor children, appeal the\ndistrict court’s grant of a motion to dismiss Plaintiffs’ claims filed by Defendants Michigan\nDepartment of Health and Human Services and its employees1 being sued in their official and\nindividual capacities; and Michigan Neonatal Biobank, Incorporated, and its Director, Dr.\nAntonio Yancey, sued in his official and individual capacities. For the reasons set forth below,\nwe AFFIRM IN PART and REVERSE IN PART the district court’s judgment and REMAND\nfor further proceedings consistent with this opinion.\n\n BACKGROUND\n\n Plaintiffs’ alleged constitutional violations concern Michigan’s Newborn Screening\nProgram (“NSP”). The NSP, which Michigan has operated since the 1960s, involves Defendant\nMichigan Department of Health and Human Services and its agents collecting blood samples\n(sometimes referred to as “blood spots”) with a filter paper collection device known as a Dried\nBlood Spot card from nearly every newborn baby in Michigan, to test for various diseases. On\nApril 30, 2018, Plaintiffs filed their First Amended Complaint for Injunctive and Declaratory\n\n\n\n\n 1These employees are Nick Lyons, Dr. Sandip Shah, Dr. Sarah Lyon-Callo, and Mary Kleyn. Harry\nHawkins was named as a defendant in the complaint but has since died, and the dismissal of Plaintiffs’ claims\nagainst him are not on appeal.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 3\n\n\nRelief with Possible Money Damages for Constitutional Violations. According to the\nComplaint,2 the facts are as follows:\n\n Plaintiffs Adam Kanuszewski and Ashley Kanuszewski have three minor children born\nover the last eleven years. Plaintiff Shannon Laporte has two minor children born over the last\neleven years. Plaintiff Lynnette Wiegand has four minor children born over the last eight years.\nThe Complaint alleges, with respect to the NSP, that blood is drawn from newborns without the\nconsent or knowledge of the newborns’ parents. Once collected, the blood samples are tested for\nover fifty maladies, disorders, or diseases. Defendants retain the samples after screening them\nfor these diseases; the samples are transferred to Defendant Michigan Neonatal Biobank, a non-\nprofit corporation, under the custody and control of Defendant Dr. Antonio Yancey, where they\nare stored for future use by the state. Plaintiffs allege that Defendants lack parental consent to\nretain, transfer, store, or otherwise use the children’s blood samples after they have been\nscreened for diseases.3\n\n Plaintiffs allege that despite Defendants’ assurances that all blood samples are secure and\nnot identifiable to the individuals from whom they were taken, some samples kept in storage at\nthe Neonatal Biobank have been given up pursuant to state court orders and some samples either\nhave been or are in the process of being sold to third-party businesses and researchers. Plaintiffs\ndo not allege that the children’s specific blood samples have been sold or given up pursuant to a\ncourt order.\n\n Plaintiffs allege that Defendants violated their substantive due process rights by not\nallowing them to decide whether to accept or reject the medical procedure in question prior to the\ncollection of their babies’ blood. Plaintiffs allege that Defendants “deprived the Infants [of] their\n\n 2Plaintiffs argue that the district court “authorized [], at least in part,” Defendants’ allegedly improper\nattachment of documents to its motion to dismiss. (Appellants’ Br. 41–49.) Because we review de novo the district\ncourt’s decisions in this case, Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012), and because we\nmay decide the issues on appeal without reference to any documents attached to Defendants’ motion to dismiss, we\nneed not address the matter of the attachment.\n 3The Complaint seems to equivocate slightly, stating that “[a]t some point during the hospital stay for the\nbirth of the Infants, the Parents might have been presented with a card giving the Parents an option of whether they\nwanted their Infants’ already illegally seized and tested blood to be donated to medical research”—but Plaintiffs\nallege that any purported consent was “not general or informed” and was therefore ineffective. (R. 26, Complaint,\nPage ID# 313.)\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 4\n\n\nliberty interest in their guardians self-making informed personal and private medical procedure\ndecisions without due process of law.” (R. 26, Complaint, Page ID# 325.) Plaintiffs allege that\ncollecting the blood samples constituted an unconstitutional search or seizure under the Fourth\nAmendment. Plaintiffs allege that the transfer of the samples to, and the samples’ storage with,\nDefendant Neonatal Biobank constituted a further, ongoing seizure for which the Neonatal\nBiobank was “a state actor or . . . otherwise liable via civil conspiracy under 42 U.S.C. § 1983\ndespite being formed as a non-profit domestic corporation.” (R. 26, Complaint, Page ID# 328,\n329.)\n\n Plaintiffs seek declaratory judgment declaring Defendants’ conduct violative of the\nFourth and Fourteenth Amendments. Plaintiffs seek many forms of prospective injunctive relief,\nincluding the following: to halt “the illegal processes and procedures”; to halt continued\npossession and retention of all blood samples taken, transferred, or stored without informed\nconsent; and to command Defendants “to destroy all data collected or extracted regarding the\nInfants, and return to the Parents all blood samples and spots of the Infants” that were obtained\nwithout informed consent. (R. 26, Complaint, Page ID# 329–32.) Finally, Plaintiffs seek\ndamages in connection with Defendants’ alleged constitutional violations.\n\n Defendants filed motions to dismiss Plaintiffs’ claims. After briefing, the district court\ngranted Defendants’ motions to dismiss and dismissed Plaintiffs’ Complaint with prejudice.\nPlaintiffs then filed this timely appeal.\n\n DISCUSSION\n\n Plaintiffs allege that Defendants, through their operation of and participation in the NSP,\nhave violated and continue to violate their substantive due process rights because blood is drawn\nfrom the children and retained without parental consent. Plaintiffs also allege that Defendants\nhave violated and continue to violate the Fourth Amendment rights of the children because\ndrawing the children’s blood constituted a search for which a warrant was required. Before we\nanalyze whether Defendants have violated Plaintiffs’ constitutional rights, we will address the\nquestion of Plaintiffs’ standing to bring these claims.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 5\n\n\nI. Standing\n\n Defendants argue that Plaintiffs lack standing to bring their claims.\n\n This Court reviews de novo determinations of standing. Shearson v. Holder, 725 F.3d\n588, 592 (6th Cir. 2013). Because standing doctrine comes from Article III’s case-or-\ncontroversy requirement, it is jurisdictional and must be addressed as a threshold matter.\nNikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017). Standing requires Plaintiffs to show 1) that\nthey have suffered an injury-in-fact that was 2) caused by Defendants’ conduct and that 3) this\nCourt can likely redress the injury with a decision for Plaintiffs. Id. at 315–16. Plaintiffs, as the\nparties invoking federal jurisdiction, bear the burden of proving the three elements of standing.\nShearson, 725 F.3d at 592. At the pleadings stage, a plaintiff “must ‘clearly . . . allege facts\ndemonstrating’ each element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting\nWarth v. Seldin, 422 U.S. 490, 518 (1975)).\n\n The questions of standing in this case concern the injury-in-fact requirement. To satisfy\nthis requirement, Plaintiffs must allege that they “have suffered an injury in fact, which is\n‘concrete, particularized, and actual or imminent.’” Shearson, 725 F.3d at 592 (quoting Clapper\nv. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). The threat of future harm can satisfy this\nrequirement as long as there is a “substantial risk” that the harm will occur. Clapper, 568 U.S. at\n414 n.5 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010). By the same\ntoken, “‘[a]llegations of possible future injury’ are not sufficient.” Id. at 409 (emphasis in\noriginal) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The Supreme Court has\nnoted that “a highly attenuated chain of possibilities [] does not satisfy the requirement that\nthreatened injury must be certainly impending.” Id. at 410.\n\n The distinction between past and ongoing or future harms is significant because the type\nof harm affects the type of relief available. Past harm allows a plaintiff to seek damages, but it\ndoes not entitle a plaintiff to seek injunctive or declaratory relief. This is because the fact that a\nharm occurred in the past “does nothing to establish a real and immediate threat that” it will\noccur in the future, as is required for injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95,\n106 (1983). Obtaining standing for declaratory relief has the same requirements as obtaining\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 6\n\n\nstanding for injunctive relief. National Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.\n1997) (“When seeking declaratory and injunctive relief, a plaintiff must show actual present\nharm or a significant possibility of future harm in order to demonstrate the need for pre-\nenforcement review.”).\n\n Our standing analysis in this case is complicated because Plaintiffs raise numerous\nclaims, each of which must independently meet the requirements for standing. Town of Chester\nv. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (“[A] plaintiff must demonstrate standing for\neach claim he seeks to press and for each form of relief that is sought.” (quoting Davis v. Fed.\nElection Comm’n, 554 U.S. 724, 734 (2008)). Further, within each claim we must determine\nwhether the alleged harm affords Plaintiffs standing to seek injunctive and declaratory relief, or\nonly damages. Accordingly, to properly analyze standing, we will disaggregate Plaintiffs’\nclaims and the forms of relief sought. See Town of Chester, 137 S. Ct. at 1650.\n\n As a brief overview, there are two types of constitutional violations alleged (substantive\ndue process and the Fourth Amendment) and two types of Plaintiffs (the parents and the\nchildren). Under the broader heading of substantive due process, Plaintiffs allege violations of\nthe “children’s right to refuse medical treatment” and of the “parents’ own fundamental liberty\ninterest in the care, custody and management of their children.”4 (Appellants’ Br. 21 (emphasis\nadded).) Plaintiffs also claim that Defendants violated the children’s Fourth Amendment rights.\nWith respect to the temporal aspect of their harm, Plaintiffs complain of the completed collection\n\n\n 4Defendants argue that because Plaintiffs captioned their Complaint as “[Parents’ names] as parent-\nguardians and next friend to their minor children,” only the rights of the children—not their parents—are before us.\n(Appellee State Defendants’ Br. 13–14.) Rule 17(c) of the Federal Rules of Civil Procedure allows an action to be\nbrought on behalf of a minor by “a general guardian” or if the minor “does not have a duly appointed representative\n. . . by a next friend.” Fed. R. Civ. P. 17(c). Rule 10(a) requires that a complaint’s title “name all the parties.” Fed.\nR. Civ. P. 10(a). If the Plaintiffs intended to raise the rights of the parents, they might instead have captioned their\ncase “[Parents’ names], individually, and as parent-guardians and next friend to their minor children . . .”; however,\n“errors in captions are common and need not ‘be viewed as [] fatal defect[s].’” Hawkins v. Wash. Metro. Area\nTransit Auth., 311 F. Supp. 3d 94, 101 (D.D.C. 2018) (quoting 5A Wright & Miller, Federal Practice & Procedure\n§ 1321 (3d ed. 2004 & Supp. 2017)). Our touchstone is adequate notice, and the Federal Rules of Civil Procedure\n“evidence a ‘clear preference to resolve disputes on their merits.’” Hawkins, 311 F. Supp. 3d at 102 (quoting Cohen\nv. Bd. of Trustees of the Univ. of Dist. of Columbia, 819 F.3d 476, 482–83 (D.C. Cir. 2016)). Because the\nComplaint provided Defendants adequate notice that the parents were asserting their own rights in addition to those\nof their children, Plaintiffs’ claims involving the rights of the parents are properly before us. (See R. 26, Complaint,\nPage ID# 305 (“Plaintiffs in this action are the Infants themselves and each parent as parents-guardians of one or\nmore children born in the State of Michigan.”))\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 7\n\n\nof the children’s blood samples, as well as the ongoing storage of the samples and the risk of the\nfuture use of the samples by third parties.\n\n To simplify this complex analysis, we will divide it into four relevant questions: 1) Did\nthe children suffer an injury-in-fact when blood samples were taken from them? 2) Did their\nparents suffer an injury-in-fact when their children’s blood samples were taken? 3) Do the\nchildren suffer an injury-in-fact from either the ongoing storage of their samples or the risk of\nfuture use of the samples? 4) Do the parents suffer an injury-in-fact from either the ongoing\nstorage of their children’s samples or the risk of future use of the samples? The answers to these\nquestions may determine whether and in what forms Plaintiffs may seek relief under each of\ntheir claims.\n\n 1. Whether the children suffered an injury-in-fact when blood samples were taken\n from them\n\n Plaintiffs assert that the children have standing to raise claims for injunctive and\ndeclaratory relief and damages based on injuries that occurred when their blood was initially\ndrawn and screened for diseases. Plaintiffs argue that the children’s substantive due process\nright to have their parents direct their medical care was violated when Defendants drew a sample\nof the children’s blood without first obtaining parental consent, and that this drawing of blood\nconstituted an injury-in-fact affording the children standing to pursue their substantive due\nprocess claims. Plaintiffs also claim that the children’s Fourth Amendment rights were violated\nwhen Defendants drew a sample of the children’s blood because this constituted a warrantless\nsearch to which no exception to the warrant requirement applied, and that this drawing of blood\nconstituted an injury-in-fact affording the children standing to pursue their Fourth Amendment\nclaims. Because the blood samples have already been collected, the children’s Fourth and\nFourteenth Amendment claims arising out of the initial drawing of blood both pertain to a\ncompleted harm and therefore afford the children standing to seek only damages—not injunctive\nor declaratory relief—resulting from this alleged violation. See Lyons, 461 U.S. at 105.\n\n We begin our injury-in-fact analysis by noting that it can be very invasive to draw an\nindividual’s blood. Drawing blood involuntarily denies an individual bodily autonomy and\ninterferes with one’s bodily integrity. Missouri v. McNeely, 569 U.S. 141, 148 (2013). Drawing\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 8\n\n\nblood can also violate one’s privacy by revealing sensitive, confidential information about that\nindividual. See id.; Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989)\n(noting that “chemical analysis of urine, [or] blood, can reveal a host of private medical facts\nabout an [individual], including whether he or she is epileptic, pregnant, or diabetic”).\n\n With respect to their Fourth Amendment claims, Plaintiffs allege that the children’s\nFourth Amendment rights were violated when the state drew a blood sample from them and\ntested it for diseases. Our standing analysis does not consider the merits of Plaintiffs’ claims;\ninstead, we must assume that “if proved in a proper case,” Defendants’ alleged practices “would\nbe adjudged violative of the [Plaintiffs’] constitutional rights.” Warth, 422 U.S. at 502. The\ncompleted harm from Defendants’ alleged Fourth Amendment violation affords the children\nstanding to seek damages, but because there is no allegation that the state will once again collect\nblood from the children in the future, the children lack standing to pursue a claim for injunctive\nor declaratory relief. See Lyons, 461 U.S. at 105 (denying standing to pursue injunctive relief\nbecause the fact “[t]hat Lyons may have been illegally choked by the police . . . , while\npresumably affording Lyons standing to claim damages . . . , does nothing to establish a real and\nimmediate threat that he would again [be illegally choked]”).\n\n With respect to Plaintiffs’ substantive due process claim, this same reasoning applies.\nThe completed harm from Defendants’ alleged substantive due process violation affords the\nchildren standing to seek damages, but there is no allegation of a real or immediate threat that the\nstate will do so again.\n\n Thus, with respect to their Fourth Amendment and substantive due process claims\nconcerning the initial drawing of blood, the children have standing to pursue damages but not\ninjunctive or declaratory relief.\n\n 2. Whether the parents suffered an injury-in-fact when their children’s blood\n samples were taken\n\n Plaintiffs similarly assert that the parents have standing to raise claims for injunctive and\ndeclaratory relief and damages based on injuries that occurred when their children’s blood was\ninitially drawn and screened for diseases. Plaintiffs argue that the parents’ substantive due\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 9\n\n\nprocess right to direct their children’s medical care was violated when Defendants drew a sample\nof the children’s blood without first obtaining parental consent, and that this drawing of blood\nconstituted an injury-in-fact affording the parents standing to pursue their substantive due\nprocess claims. But this is a completed harm that only gives the parents standing to pursue\ndamages resulting from this alleged violation. See Lyons, 461 U.S. at 105.\n\n If parents have a substantive due process right to make decisions relating to their\nchildren’s medical care, then the parents in this case have suffered an injury-in-fact from having\nbeen denied the exercise of the right, which affords them standing to pursue damages. However,\nthe parents cannot seek prospective relief because they do not allege a real or immediate threat\nthat the state will repeat the alleged violation. Perhaps the parents could have argued (although\nthey did not) that the threat remains because they have the ability to have more children, who\nwould at birth be subject to having their blood drawn, which would again infringe upon the\nparents’ substantive due process rights. However, even if this argument were raised, without\nfurther description of the parents’ concrete reproductive plans it would be foreclosed by the\nSupreme Court’s decision in Lujan v. Defenders of Wildlife. 504 U.S. 555, 564 (1992) (“‘[S]ome\nday’ intentions—without any description of concrete plans, or indeed even any specification of\nwhen the some day will be—do not support a finding of the ‘actual or imminent’ injury that our\ncases require.”).\n\n Thus, like the children, the parents have standing to pursue damages, but not injunctive or\ndeclaratory relief with regard to the initial taking of the blood samples from the children.\n\n 3. Whether the children suffer an ongoing injury-in-fact from the storage of their\n samples or face a substantial risk of future harm from the use of their samples\n\n Plaintiffs argue that the children have standing to raise claims for injunctive and\ndeclaratory relief and damages based on ongoing injuries and the threat of further injuries\nresulting from the transfer and storage of their blood samples, which they allege violated the\nFourth and Fourteenth Amendments. Because the storage of the blood samples represents an\nongoing violation, the children will be able to pursue all three forms of relief, i.e., injunctive,\ndeclaratory, and damages, in connection with both their Fourth and Fourteenth Amendment\nclaims.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 10\n\n\n We begin with Plaintiffs’ claims relating to the children’s Fourth Amendment rights.\nPlaintiffs allege violations of the children’s Fourth Amendment rights in connection with\nDefendants’ transfer and storage of the blood samples. Assuming that the storage is a Fourth\nAmendment violation, it is the sort of actual, ongoing harm that affords a plaintiff standing to sue\nfor damages, as well as injunctive and declaratory relief. See National Wildlife Federation v.\nU.S. Army Corps of Engineers, 170 F. Supp. 3d 6, 14 (D.D.C. 2016) (“Still viable at this juncture\nis the conservation groups’ claim of an actual ongoing harm to their recreational and aesthetic\ninterests, which supports standing . . . .”). Thus, Plaintiffs have alleged an injury-in-fact\nsufficient for standing to seek all three types of relief.\n\n With respect to Plaintiffs’ claims relating to the children’s substantive due process rights,\nPlaintiffs assert two types of injury. One asserted injury is too speculative to constitute an\ninjury-in-fact for prospective relief, but the other provides the children with standing for all three\ntypes of relief sought.\n\n In their complaint, Plaintiffs allege that the children’s samples were sent to the Neonatal\nBiobank and that it is within the bank’s power to sell or otherwise use the samples for state\npurposes, even if it has not yet done so. At no point in this litigation have Defendants denied\nthat the Neonatal Biobank possesses such authority—though this might be because no Defendant\nhas yet answered Plaintiffs’ Complaint. Nor have Defendants denied that the state has a present\nor future commercial interest in the blood samples, inasmuch as the Neonatal Biobank may wish\nto sell these samples to third parties. Plaintiffs also allege that “there are no statutory legal\nprotections on who may access, use, or utilize the private medical and genetic information of the\nInfants.” (R. 26, Complaint, Page ID# 317.) Drawing on these allegations, Plaintiffs’ first\nasserted injury is their fear of “the misuse of that information” and “the possibility of\ndiscrimination against their Infants and perhaps even relatives through the use of such blood\nsamples and research activity thereon.” (Id., Page ID# 320–21.) Plaintiffs argue their fears are\n“well-founded” since blood spots have “resulted in the arrest of an alleged killer” and “the\nwrongful arrest of persons who were not guilty of any crime.” (Id., Page ID# 318.)\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 11\n\n\n Plaintiffs’ first asserted injury does not meet the injury-in-fact requirement, because it\nrelates to a possibility of future harm that is not concrete, particularized, or imminent.5 The\nSupreme Court has explained that an alleged future harm cannot be “too speculative . . .\n[but rather must be] certainly impending.” Clapper, 568 U.S. at 409 (emphasis in original)\n(quoting Lujan, 504 U.S. at 564 n.2). The Court clarified that this does not require “literal[]\ncertain[ty]” but at least a “substantial risk” that the harm will occur. Id. at 414 n.5 (quoting\nMonsanto Co., 561 U.S. at 153).\n\n The primary problem with Plaintiffs’ first asserted injury is that for the injury to occur,\nthe researchers or businesses will have to use the “deeply private medical and genetic\ninformation” contained in the blood samples to discriminate against the children or their families,\nor otherwise harm them. (R. 26, Complaint, Page ID# 320.) The Supreme Court has made clear\nthat “mere[] speculat[ion] and . . . assumptions about” how the government will operate one of\nits programs is not a sufficiently particularized harm to meet the injury-in-fact requirement.\nClapper, 568 U.S. at 412. This is true even where the government has the power to do what a\nplaintiff fears it might. Id. Plaintiffs have not alleged facts that demonstrate a substantial risk\nthat they will suffer discrimination. Rather, Plaintiffs’ first theory of harm consists largely of\nspeculation and therefore cannot satisfy the injury-in-fact requirement. Cf. Clapper, 568 U.S. at\n410 (finding no injury-in-fact where plaintiffs feared that a series of events would occur which\nwould ultimately result in harm because the threat of harm was too speculative).\n\n Plaintiffs’ second theory of injury relates to the infringement of the children’s protected\nprivacy interests, and this theory is more persuasive. This theory affords the children standing to\n\n\n\n 5Defendants also argue that this is not a cognizable harm because a parent or guardian may request that a\nblood sample not be used for research “by contacting [the Department of Community Health] by telephone or mail”\nor request that a sample be destroyed if they provide information “to confirm that they have authority to make such a\nrequest.” (R. 26-3, MDCH Manual, Page ID# 336.) The existence of these options, Defendants argue, means that\n“there is a remedy available outside of litigation to prevent th[e] speculative harm [of misuse or discrimination] from\noccurring.” (Appellee Biobank Br. 9.) However, Defendants cite no cases explaining what the significance of\nalternate remedies being available has in standing analysis, and Plaintiffs correctly point out that this argument\nsuggests there is an exhaustion-of-remedies requirement to § 1983 claims, which Supreme Court precedent has\nexpressly rejected. See Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy [under § 1983] is\nsupplementary to [any] state remed[ies], and the latter need not be first sought and refused before the federal one is\ninvoked.”).\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 12\n\n\npursue damages, as well as prospective relief, in connection with their substantive due process\nclaims relating to the transfer and ongoing storage of their blood samples.\n\n With respect the children’s standing to pursue damages, the Supreme Court has held that\nconducting chemical analysis on blood samples invades the subject’s privacy interests. Skinner,\n489 U.S. at 616. This is because “chemical analysis of urine, [or] blood, can reveal a host of\nprivate medical facts about an [individual], including whether he or she is epileptic, pregnant, or\ndiabetic.” Id. at 617. Therefore, if we assume that Defendants violated the children’s substantive\ndue process rights when they tested the blood samples for various diseases, the children have\nsuffered a completed injury-in-fact based on Defendants’ infringement upon their privacy\ninterest, which affords them standing to seek damages. See Lyons, 461 U.S. at 105.\n\n Further, with respect to prospective relief, there is a substantial risk that additional\nchemical analysis of the samples will occur, meaning that this second theory of injury affords the\nchildren standing to seek injunctive and declaratory relief as well. The problem with the chain of\ninferences in the first theory of injury is that it is too speculative to assert that third parties may\nuse the information contained in the blood samples to discriminate against Plaintiffs. However,\nit is not too speculative to assert that the state or third parties may conduct chemical analysis on\nthe blood samples—indeed, Plaintiffs allege that this is the very reason why the state retains the\nsamples and why third parties wish to obtain them. Cf. Galaria v. Nationwide Mut. Ins. Co., 663\nF. App’x 384, 388 (6th Cir. 2016) (finding injury-in-fact where hackers had obtained plaintiffs’\ndata but had not yet misused it because “a reasonable inference can be drawn that the hackers\nwill use the victims’ data for” fraudulent purposes). Because there is a substantial risk that the\nchildren will suffer further harm if and when the state or third parties conduct chemical analysis\non the children’s samples, the children have standing to pursue prospective relief.\n\n Thus, the children have standing to seek injunctive and declaratory relief, as well as\ndamages, in connection with their Fourth and Fourteenth Amendment claims relating to the\ntransfer and storage of their blood samples.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 13\n\n\n 4. Whether the parents suffer an ongoing injury-in-fact from the storage of their\n children’s samples or face a substantial risk of future harm from the use of the\n samples\n\n Finally, Plaintiffs assert that the parents have standing to raise claims for injunctive and\ndeclaratory relief and damages based on ongoing injuries and the threat of further injuries\nresulting from the transfer and storage of their children’s blood samples, which they allege\nviolate the Fourteenth Amendment. The parents have standing to seek all three forms of relief.\n\n The Complaint states that “the Parents are concerned and fear about the misuse of that\ninformation and fear the possibility of discrimination against their Infants and perhaps even\nrelatives through the use of such blood samples and research activity thereon.” (R. 26,\nComplaint, Page ID# 320–21.) This fails as an injury-in-fact for the reasons discussed in the\nprevious section. However, the parents do have standing to pursue injunctive and declaratory\nrelief, as well as damages, in connection with their claim that the ongoing storage of their\nchildren’s blood samples violates their substantive due process rights to direct and control the\nmedical care of their children.\n\n Plaintiffs argue that the Fourteenth Amendment protects parents’ rights to direct the\nmedical care of their children. For purposes of our standing analysis, we assume that Plaintiffs\nwill be able to prove that the transfer and storage of their children’s blood samples violates the\nparents’ substantive due process rights. The Supreme Court has held that parents have standing\nwhen the state interferes with their right to control the upbringing of their children, as when\nparents’ “impressionable schoolchildren were subjected to unwelcome religious exercises or\nwere forced to assume special burdens to avoid them.” Valley Forge Christian College v.\nAmericans United for Separation of Church and State, Inc., 454 U.S. 464, 486 n.22 (1982)\n(discussing Abington School District v. Schempp, 374 U.S. 203 (1963)); accord Caldwell v.\nCraighead, 432 F.2d 213, 220 (6th Cir. 1970) (“In challenging the constitutionality of [certain]\ntypes of religious services, there is sufficient interest to sue if the parties are either students\nenrolled in the institution where the services are carried on or are parents of the students.”). Just\nas it represents a harm to parents when the state denies them their right to direct the education\nand religious upbringing of their children, it represents a harm when the state denies parents the\nright to direct the medical care of their children. The parents in this case allege that they are\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 14\n\n\nbeing denied their right to direct the medical care of their children by Defendants’ ongoing\nstorage of the blood samples without parental consent and will be further denied this right if the\nstate conducts research using the samples or transfers the samples to third parties. These alleged\nharms afford the parents standing to seek injunctive and declaratory relief, as well as damages, in\nconnection with the storage of their children’s blood samples.\n\n In sum, the claims for which Plaintiffs have standing6 are as follows: 1) a claim for\ndamages based on the alleged violation of the children’s substantive due process rights when\ntheir blood samples were collected and screened for diseases; 2) a claim for damages based on\nthe alleged violation of the parents’ substantive due process rights when their children’s blood\nsamples were collected and screened for diseases; 3) a claim for damages, as well as injunctive\nand declaratory relief, based on the alleged violation of the children’s substantive due process\nrights by Defendants’ retention and ongoing storage of their blood samples; 4) a claim for\ndamages, as well as injunctive and declaratory relief, based on the alleged violation of the\nparents’ substantive due process rights by Defendants’ retention and ongoing storage of their\nchildren’s blood samples; 5) a claim for damages based on the alleged violation of the children’s\nFourth Amendment rights when their blood samples were collected and screened for diseases;\nand 6) a claim for damages, as well as injunctive and declaratory relief, based on the alleged\nviolation of the children’s Fourth Amendment rights by Defendants’ retention and ongoing\nstorage of their blood samples.\n\n We will first address Plaintiffs’ four substantive due process claims, and then address\ntheir two Fourth Amendment claims.\n\n\n\n\n 6With respect to the other two standing requirements, there is no question that Plaintiffs’ alleged harms\nhave “‘a causal connection [with] the conduct complained of’ [and are] ‘fairly . . . trace[able] to the challenged\naction of [Defendants], and not . . . th[e] result [of] the independent action of some third party not before the court.’”\nShearson, 725 F.3d at 592 (quoting Lujan, 504 U.S. at 560–61). The causation requirement is therefore met with\nrespect to these claims. And because it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be\n‘redressed by a favorable decision,’” the redressability requirement is met as well. Id. (quoting Lujan, 504 U.S. at\n561).\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 15\n\n\nII. Substantive Due Process Claims\n\n Standard of Review\n\n “We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss for\nfailure to state a claim.” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012). To\nsurvive a motion to dismiss, a complaint “does not need detailed factual allegations,” but should\nidentify “more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555\n(2007). A complaint also “must contain sufficient factual matter, accepted as true, to ‘state a\nclaim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting\nTwombly, 550 U.S. at 570).\n\n Analysis\n\n Plaintiffs’ substantive due process claims involve Defendants’ alleged violations of both\nthe children’s right to direct their own medical care and the parents’ rights to direct the medical\ncare of their children. Plaintiffs claim that the parents’ and children’s rights were violated when\nthe children’s blood was drawn and screened for diseases, as well as by Defendants’ retention\nand ongoing storage of the children’s blood samples and the threat of future use of those\nsamples. This section will address each of these issues.\n\n 1. Alleged Violation of the Children’s Substantive Due Process Rights When Blood\n Samples Were Collected\n\n Plaintiffs seek damages based on the alleged violation of the children’s substantive due\nprocess rights when their blood samples were collected and screened for diseases. Defendants\nclaim that damages are precluded by state sovereign immunity and qualified immunity.\n\n State sovereign immunity generally bars damages actions against states from proceeding\nin federal court. Maben v. Thelen, 887 F.3d 252, 270 (6th Cir. 2018).7 This immunity also\ngenerally applies to “state agents and instrumentalities,” Regents of Univ. of Calif. v. Doe,\n\n\n 7State sovereign immunity is sometimes called “Eleventh Amendment” immunity because that amendment\nreaffirmed the doctrine after it was thrown into doubt; however, this immunity emanates from our overall\nconstitutional framework rather than existing in any one amendment. See Pennhurst State School & Hosp. v.\nHalderman, 465 U.S. 89, 97–98 (1984).\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 16\n\n\n519 U.S. 425, 429 (1997), including state officials sued in their official capacities. Maben,\n887 F.3d at 270. For this reason, Plaintiffs cannot seek damages from MDHHS, the Neonatal\nBiobank,8 or any individual Defendant sued in his or her official capacity.\n\n “The Eleventh Amendment, however, does not bar suits for damages against officers in\ntheir personal capacity under § 1983.” Maben, 887 F.3d at 270 (citing Hafer v. Melo, 502 U.S.\n21, 25–27 (1991)). Thus, Plaintiffs’ claims seeking damages against Nick Lyon, Dr. Sandip\nShah, Dr. Sarah Lyon-Callo, Mary Kleyn, and Dr. Antonio Yancey are not barred by Eleventh\nAmendment immunity.\n\n These claims were nevertheless properly dismissed because the individual defendants are\nentitled to qualified immunity. To overcome qualified immunity, Plaintiffs must show that “the\nright at issue was clearly established at the time of [the] defendant’s alleged misconduct.”\nBarker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011). “To be clearly established, a right must\nbe sufficiently clear ‘that every reasonable official would [have understood] that what he is doing\nviolates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft v. al-Kidd,\n563 U.S. 731, 741 (2011)). Plaintiffs have failed to make the required showing to overcome\nqualified immunity.\n\n Plaintiffs concede that “[t]his is a case of first impression” involving “a novel\ncircumstance alleged to be occurring in violation of the Fourth and Fourteenth Amendments.”\n(Appellants’ Br. ix.) Plaintiffs are correct that the Supreme Court has held that “a competent\n\n\n 8Plaintiffs’ Complaint assert that Michigan Neonatal Biobank and its Director, Dr. Antonio Yancey, are\nboth state actors suable under § 1983. The Neonatal Biobank defines itself as a “nonprofit corporation that receives\nall or nearly all of its funding from the State of Michigan,” and the state relies on the Neonatal Biobank to\n“indefinitely store the Infants’ blood” after the blood samples are screened for diseases. (Appellee Biobank Br. 3,\n4.) The Neonatal Biobank’s brief never directly addresses whether it is an arm of the state and thus seems to\nconcede that it is. At oral argument, counsel for the Neonatal Biobank explained that the Neonatal Biobank was\ncreated by the state but stated that he did not believe any state employees or officers were on its board of directors.\n(Mar. 13, 2018, Oral Arg. 28:52–29:35.) We have held that an entity created by the state law “to carry out state\nfunctions” is sufficiently affiliated with the state as to constitute an arm of the state. Estate of Ritter v. Univ. of\nMichigan, 851 F.2d 846, 850 (6th Cir. 1988). The Supreme Court has noted that “the vulnerability of the State’s\npurse [is] the most salient factor in Eleventh Amendment determinations.” Hess v. Port Auth. Trans-Hudson Corp.,\n513 U.S. 30, 48 (1994). Michigan created the Neonatal Biobank to carry out the state function of storing the\nInfants’ blood, which the state funds the Neonatal Biobank to do. The fact that the state funds the Neonatal Biobank\nsuggests that the state’s purse would be vulnerable if Plaintiffs were to recover against the Neonatal Biobank. Based\non these considerations, the Neonatal Biobank is an arm of the state.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 17\n\n\nperson has a constitutionally protected liberty interest in refusing unwanted medical treatment.”\nCruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 277 (1990). However, the Court has\nnever so held for incompetent persons or minors, and it has in fact strongly suggested that this\nright does not extend to minor children. Id. at 279 (noting that in a prior decision the Court\n“certainly did not intimate that . . . a minor child, after commitment, would have a liberty interest\nin refusing treatment”). Plaintiffs have therefore failed to show that “the right at issue was\nclearly established at the time of [Defendants’] alleged misconduct.” Barker, 649 F.3d at 433.\n\n Thus, each of Plaintiffs’ damages claims asserting a violation of the children’s\nsubstantive due process rights when their blood was collected and screened for diseases is barred\nby either state sovereign immunity or qualified immunity. Because these claims cannot be\nmaintained against Defendants in light of the relevant immunities, we may affirm the district\ncourt without deciding whether the children’s substantive due process rights were actually\nviolated. See Pearson v. Callahan, 555 U.S. 223, 237 (2009). Nevertheless, under Pearson v.\nCallahan, we may still “exercise [our] sound discretion” to decide whether a constitutional\nviolation occurred. 555 U.S. at 236.9\n\n In this instance, we will exercise our discretion to decide the underlying constitutional\nquestion because this is an issue for which “a discussion of why the relevant facts do not violate\nclearly established law make[s] it apparent that in fact the relevant facts do not make out a\nconstitutional violation at all.” Id. The qualified immunity discussion above makes it apparent\nthat the children’s substantive due process rights were not violated. As mentioned, the Supreme\nCourt has strongly suggested that minor children lack a liberty interest in directing their own\nmedical care. Cruzan, 497 U.S. at 279; see also Schall v. Martin, 467 U.S. 253, 265 (1984)\n(“Children, by definition, are not assumed to have the capacity to take care of themselves.”).\n\n 9Defendants argue that we should not address Plaintiffs’ substantive due process claims because Plaintiffs\nalso raise Fourth Amendment claims arising out of the drawing of the children’s blood. Defendants cite the\nSupreme Court’s statement that “[w]here a particular Amendment provides an explicit textual source of\nconstitutional protection against a particular sort of government behavior, that Amendment, not the more\ngeneralized notion of substantive due process, must be the guide for analyzing these claims.” Cty. of Sacramento v.\nLewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)). However, Lewis is\ndistinguishable because it concerned the vaguer “shocks the conscience” test of substantive due process, rather than\na claim relating to a specific fundamental right like the right to direct one’s medical care. Because the substantive\ndue process rights that Plaintiffs assert are analytically distinct from their Fourth Amendment claims, we may\naddress both types of claims separately.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 18\n\n\nInstead, children must instead rely on parents or legal guardians to do so until they reach the age\nof competency. See Parham v. J. R., 442 U.S. 584, 602 (1979) (“The law’s concept of the family\nrests on a presumption that parents possess what a child lacks in maturity, experience, and\ncapacity for judgment required for making life’s difficult decisions.”); Schall, 467 U.S. at 265\n(recognizing that children “are assumed to be subject to the control of their parents.”).\nAccordingly, any substantive due process rights related to directing the medical care of children\ndevolve upon the parents or legal guardians of the children, rather than the children themselves.\nThe children’s substantive due process rights were therefore not violated when Defendants drew\ntheir blood and screened it for diseases, providing another basis upon which to affirm the district\ncourt’s dismissal of these claims.\n\n 2. Alleged Violation of the Parents’ Substantive Due Process Rights When Blood\n Samples Were Collected\n\n Plaintiffs seek damages based on Defendants’ alleged violation of the parents’\nsubstantive due process rights when their children’s blood samples were collected and screened\nfor diseases. As with the previous claim, this claim is for damages and thus can only be brought\nagainst the state officers in their individual capacities due to state sovereign immunity. And as\nwith the previous claim, the state officers are entitled to qualified immunity.\n\n To overcome qualified immunity, Plaintiffs must show that “the right at issue was clearly\nestablished at the time of the defendant’s alleged misconduct.” Barker, 649 F.3d at 433.\nPlaintiffs acknowledge that “there is little case law on the same factual circumstances of this\ncase.” (Appellants’ Br. 25.) Plaintiffs further concede that “Supreme Court precedent . . . has\nnot delineated the parameters of a ‘parent’s right to parent’ in a way that can be neatly applied to\nnew sets of facts.” (Appellants’ Br. 24 (quoting R. 50, Order, ID# 831 (citing Doe v. Heck, 327\nF.3d 492, 519 (7th Cir. 2003))).) Nevertheless, Plaintiffs argue that “nonconsensual medical\ntreatment and testing violating the Fourteenth Amendment is not a completely first impression\nmatter in this country.” (Appellants’ Br. 20.)\n\n It is true that the Supreme Court has recognized parents’ substantive due process right to\n“direct the upbringing and education of children under their control.” Pierce v. Soc’y of Sisters,\n268 U.S. 510, 534–35 (1925). However, this precedent does not address the issue of parents’\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 19\n\n\nright to control their children’s medical care and therefore does not demonstrate that Defendants\nviolated Plaintiffs’ clearly established rights. See Reichle, 566 U.S. at 664. The case law in this\narea is sparse; Plaintiffs cite only a Tenth Circuit case and a district court case touching on the\nissue of parents’ right to control their children’s medical care. Dubbs v. Head Start, Inc.,\n336 F.3d 1194 (10th Cir. 2003); Beleno v. Lakey, 306 F. Supp. 3d 930 (W.D. Tex. 2009). In\nDubbs, the Tenth Circuit held that the district court had erroneously applied the “shocks the\nconscience” standard to a claim similar to the instant claim, but “decline[d] to resolve the\ndifficult questions regarding the standard to be applied.” 336 F.3d at 1203–04. Plaintiffs are\ntherefore incorrect that even one court of appeals case has squarely addressed the question before\nus. And even if it were, “[t]his court has stated that out-of-circuit precedent clearly establishes\nrights only in ‘extraordinary case[s]’” involving rights that are “clearly foreshadowed by\napplicable direct authority,” which is not true of the rights at issue in this case. Hearring v.\nSliwowski, 712 F.3d 275, 282 (6th Cir. 2013) (quoting Ohio Civil Serv. Emps. Ass’n v. Seiter,\n858 F.2d 1171, 1177 (6th Cir. 1988)).\n\n State sovereign immunity and qualified immunity therefore bar all of Plaintiffs’ claims\nalleging that the parents’ substantive due process rights were violated when Defendants drew\ntheir children’s blood and screened it for diseases, and we decline to exercise our discretion to\nreach the merits of this issue. See Pearson, 555 U.S. at 236. In contrast with the issue discussed\nin the previous section, we cannot easily say, based on the allegations in the Complaint, that the\ndrawing of the children’s blood “do[es] not make out a constitutional violation” of the parents’\nsubstantive due process right to direct their children’s medical care. Id. The Supreme Court has\nsuggested that we might decline to exercise our jurisdiction in situations where “it is plain that a\nconstitutional right is not clearly established but far from obvious whether in fact there is such a\nright.” Pearson, 555 U.S. at 237. Because this issue presents such a situation, we decline to rule\non whether the initial drawing of blood violated the parents’ substantive due process rights, and\nwe affirm the district court’s judgment solely on qualified immunity and state sovereign\nimmunity grounds.10\n\n\n\n 10We note as well that although these Plaintiffs lack standing to pursue prospective relief on their claims\narising out of the initial drawing of blood, future plaintiffs may be able to demonstrate a risk of future harm that is\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 20\n\n\n 3. Alleged Violation of the Children’s Substantive Due Process Rights Based on\n Ongoing Storage of Blood Samples\n\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\nviolation of the children’s substantive due process right to direct their own medical care by\nDefendants’ retention of the children’s blood samples after the samples have been screened for\ndiseases, by Defendants’ transfer of the samples to the Neonatal Biobank, and by Defendants’\nongoing storage of the samples for further use by the state. As with the previous claims, state\nsovereign immunity and qualified immunity prevent Plaintiffs from obtaining damages against\nDefendants in connection with this claim.\n\n Unlike with the previous claims, however, Plaintiffs have standing to seek prospective\nrelief for the alleged ongoing violation of the children’s rights. State sovereign immunity\nprevents Plaintiffs from seeking such relief against MDHHS and the Neonatal Biobank because\nthese entities are state instrumentalities that are considered “the state and its departments.”\nThiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir.\n1993) (citing Pennhurst, 465 U.S. at 100–01). But state sovereign immunity is subject to a few\nexceptions, one of which is the doctrine first announced in Ex parte Young, 209 U.S. 123 (1908).\n“[T]he Supreme Court announced an exception to Eleventh Amendment sovereign immunity in\nEx parte Young for claims [under federal law] for injunctive relief against individual state\nofficials in their official capacities.” Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th\nCir. 2013). We have further explained:\n\n Under the Ex parte Young exception, a federal court can issue prospective\n injunctive and declaratory relief compelling a state official to comply with federal\n law, Will [v. Mich. Dept. of State Police, 491 U.S. 58,] 71 & n. 10 [(1989)],\n regardless of whether compliance might have an ancillary effect on the state\n treasury, Edelman [v. Jordan, 415 U.S. 651,] 667–68 [(1974)]; Doe v. Wigginton,\n\n“concrete, particularized, and actual or imminent” enough to give them standing to pursue such relief. Shearson,\n725 F.3d at 592 (quoting Clapper, 568 U.S. at 409). Such plaintiffs would only need to demonstrate a “substantial\nrisk” that the harm will occur. Clapper, 568 U.S. at 414 n.5 (quoting Monsanto Co., 561 U.S. at 153). For example,\nfuture plaintiffs might consist of individuals who are pregnant or seeking to become pregnant. If these potential\nplaintiffs can demonstrate more than mere “‘some day’ intentions” to bear children, they will likely have standing to\npursue prospective relief relating to the risk that their future children’s blood will be drawn at birth. Lujan. 504\nU.S. at 564. The possibility of such a case, which would require us to address the merits of this issue, further\nsupports our decision not to exercise our discretion to decide the issue in this case, where such decision would seem\nto be “an essentially academic exercise.” Pearson, 555 U.S. at 237.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 21\n\n\n 21 F.3d 733, 737 (6th Cir. 1994). “It is beyond dispute that federal courts have\n jurisdiction over suits to enjoin state officials from interfering with federal rights.”\n Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d\n 490 (1983) (citing Ex parte Young, 209 U.S. at 160–62, 28 S.Ct. 441). The Ex\n parte Young exception does not, however, extend to any retroactive relief. Quern\n v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).\n\nS & M Brands, Inc. v. Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008).11\n\n In this case, the Ex parte Young exception applies only to the individual state officers—\nNick Lyon, Dr. Sandip Shah, Dr. Sarah Lyon-Callo, Mary Kleyn, and Dr. Antonio Yancey—and\nonly to the extent that Plaintiffs’ claims are brought against these individuals in their official\ncapacities. The Ex parte Young exception does not permit Plaintiffs to seek damages or any\nother retroactive relief against these Defendants, but it does permit Plaintiffs to seek prospective\ninjunctive and declaratory relief against them. In sum, Plaintiffs’ claims fit within the Ex parte\nYoung exception to the extent that they relate to the ongoing storage of the children’s blood\n(which Plaintiffs allege is a “continuing violation of” the children’s substantive due process\nrights) and they seek prospective relief aimed at stopping this alleged violation.\n\n Thus, state sovereign immunity does not bar Plaintiffs’ claims for prospective relief\nagainst the individual Defendants in their official capacities arising out of the ongoing storage of\nthe children’s blood. Nor are Plaintiffs’ claims seeking prospective relief against these\nDefendants barred by qualified immunity, as “qualified immunity only immunizes defendants\nfrom monetary damages”—not injunctive or declaratory relief. Williams v. Com. of Ky., 24 F.3d\n1526, 1541 (6th Cir. 1994). We can therefore proceed to the merits of Plaintiffs’ claim that\nDefendants’ retention and ongoing storage of their blood samples violates the children’s\nsubstantive due process rights.\n\n\n\n 11Another reason that claims against the state and its agencies cannot be maintained under § 1983 is that\nthese entities are not suable “persons” for purposes of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S.\n58, 64–66 (1989). By contrast, “a state official in his or her official capacity, when sued for injunctive relief, [is] a\nperson under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the\nState.’” Id. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1989) and citing Ex parte Young, 209\nU.S. at 159–60). The Supreme Court has explained that “[t]his distinction is ‘commonplace in sovereign immunity\ndoctrine,’ L. Tribe, American Constitutional Law § 3–27, p. 190, n. 3 (2d ed. 1988), and would not have been\nforeign to the 19th-century Congress that enacted § 1983.” Id.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 22\n\n\n This claim fails because the children’s substantive due process rights were not violated.\nAs discussed above, children cannot control their own medical care and must instead rely on\nparents or legal guardians to do so until they reach the age of competency. See Cruzan, 497 U.S.\nat 279; Schall, 467 U.S. at 265; Parham, 442 U.S. at 602. Therefore, any substantive due\nprocess rights related to their care devolve upon the parents or legal guardians rather than the\nchildren themselves. For this reason, we affirm the district court’s dismissal of the children’s\nsubstantive due process claims. The rights of the parents or guardians are discussed in the\nfollowing section.\n\n 4. Alleged Violation of the Parent’s Substantive Due Process Rights Based on\n Ongoing Storage of Blood Samples\n\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\nviolation of the parent’s substantive due process rights to direct the medical care of their children\nby Defendants’ retention, transfer, and ongoing storage of the children’s blood samples.\n\n For the reasons already discussed, state sovereign immunity and qualified immunity\nprevent Plaintiffs from obtaining damages against Defendants. Plaintiffs cannot seek prospective\nrelief against MDHHS or the Neonatal Biobank, but they can seek such relief against the\nindividual Defendants in their official capacities. See Thiokol Corp., 987 F.2d at 381. We\ntherefore proceed to the merits of Plaintiffs’ claim that Defendants’ ongoing storage of their\nchildren’s blood samples violates the parents’ substantive due process rights.\n\n Parents possess a fundamental right to make decisions concerning the medical care of\ntheir children. It is well established that a parent has a substantive due process right “to direct\nthe education and upbringing of [his] children.” Washington v. Glucksberg, 521 U.S. 702, 720\n(1997) (citing Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510\n(1925)). Otherwise stated, a parent has a “fundamental right to make decisions concerning the\ncare, custody, and control of her” children, Troxel v. Granville, 530 U.S. 57, 72 (2000), which\nwould seem to naturally include the right to direct their children’s medical care. See Parham,\n442 U.S. at 604 (“[Parents] retain plenary authority to seek [at least some forms of medical] care\nfor their children [including institutionalization], subject to a physician’s independent\nexamination and medical judgment.”); PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197 (10th\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 23\n\n\nCir. 2010) (recognizing that although “[t]he Supreme Court has . . . never specifically defined the\nscope of a parent’s right to direct her child’s medical care,” “precedent reasonably suggests that\nthe Due Process Clause provides some level of protection for parents’ decisions regarding their\nchildren’s medical care”).\n\n The right of parents to direct the medical care of their children has further support in the\ncase law as well. In Cruzan, the Supreme Court held that “a competent person has a\nconstitutionally protected liberty interest in refusing unwanted medical treatment.” 497 U.S. at\n278. As discussed, children do not possess the right to make medical decisions for themselves\nbecause “[c]hildren, by definition, are not assumed to have the capacity to take care of\nthemselves.” Schall v. Martin, 467 U.S. 253, 265 (1984). However, this does not imply that no\none has a fundamental right to direct the medical care of children. Rather, “[t]he law’s concept\nof the family rests on a presumption that parents possess what a child lacks in maturity,\nexperience, and capacity for judgment required for making life’s difficult decisions.” Parham,\n442 U.S. at 602. Children “are assumed to be subject to the control of their parents.” Schall, 467\nU.S. at 265. Thus, it is logically the parents who possess a fundamental right to direct the\nmedical care of their children. For these reasons, parents’ substantive due process right “to make\ndecisions concerning the care, custody, and control” of their children includes the right to direct\ntheir children’s medical care. 530 U.S. at 72.\n\n The existence of a fundamental right means that “[g]overnment actions that burden the\nexercise of [the right] are subject to strict scrutiny, and will be upheld only when they are\nnarrowly tailored to a compelling governmental interest.” Seal v. Morgan, 229 F.3d 567, 574–75\n(6th Cir. 2000). This does not mean that parents’ control over their children is without limit. See\nSchall, 467 U.S. at 265 (“[I]f parental control falters, the State must play its part as parens patriae\n[and in such circumstances] the juvenile’s liberty interest may . . . be subordinated to the State’s\n‘parens patriae interest in preserving and promoting the welfare of the child.’” (quoting Santosky\nv. Kramer, 455 U.S. 745, 766 (1982))). Indeed, limitations on parents’ control over their\nchildren are particularly salient in the context of medical treatment. See, e.g., Jacobson v.\nMassachusetts, 197 U.S. 11, 38 (1905) (holding that a compulsory vaccination law with only\nmedical exemptions did not violate any federal constitutional right); Nikolao v. Lyon, 875 F.3d\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 24\n\n\n310, 316 (6th Cir. 2017) (holding that a compulsory vaccination law with some religious\nexemptions did not violate the First Amendment).12 The state’s interest in preserving the welfare\nof children is at its zenith when the life of the child is at stake, and in such circumstances the\nstate in its role of parens patriae may subordinate the interest of the child’s parents to its own\ninterest in keeping the child alive. See Schall, 467 U.S. at 265. A program to screen children for\nlife-threatening diseases at birth may be an example of a state’s proper exercise of its parens-\npatriae role, provided that the state operates the program for purely benevolent motives. See\nJacobson, 197 U.S. at 38; Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (“[T]he state has a\nwide range of power for limiting parental freedom and authority in things affecting the child’s\nwelfare . . . .”). It may well be that the NSP would survive strict scrutiny to the extent that it\ninvolves drawing the children’s blood and screening for life-threatening diseases. However, as\nstated, we decline to rule on this aspect of the NSP because Plaintiffs’ substantive due process\nclaims relating to the initial drawing of blood and screening for diseases are barred by state\nsovereign immunity and qualified immunity.\n\n The only remaining question is whether Defendants’ subsequent retention, transfer, and\nstorage of the samples violate the parents’ fundamental rights. Plaintiffs allege facts sufficient to\nstate plausible claims for relief on this issue, and we therefore reverse the district court’s\ndismissal of these claims.\n\n Plaintiffs allege that after screening children’s blood samples for diseases, Defendants\nretain the samples, transfer the samples to the Neonatal Biobank, and store the samples\nindefinitely for further use by the state or third parties. Plaintiffs allege that these actions are\n\n\n\n\n 12Plaintiffs argue that these cases only stand for the proposition that “[l]aws that are intended to prevent a\nperson from harming others by disease contagion can be justified as an exercise of police power” and that the cases\ndo not govern in this instance because none of the diseases screened for in the program at issue are contagious.\n(Appellants’ Br. 28–29.) This argument ignores much precedent to the effect that the state may protect children\nfrom danger created by their parents. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1994) (“Acting to guard\nthe general interest in youth’s well being, the state as parens patriae may restrict the parent’s control . . . in many []\nways.”). Plaintiffs’ argument is essentially that a parent may not place other parents’ children in danger via her\ndecisions as to her child’s medical care, see Jacobson, 197 U.S. at 38, but that a parent can put her own child in\ndanger via such decisions. Such a holding would be deeply unsettling; fortunately, neither the Constitution nor any\ncases interpreting the Constitution persuade us that it is correct.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 25\n\n\nundertaken without informed parental consent.13 Because this case is before us on appeal from a\nmotion to dismiss, we must take Plaintiffs’ factual allegations as true. Iqbal, 556 U.S. at 678.\nTaking these allegations as true, Defendants’ actions constitute a denial of the parents’\nfundamental right to direct the medical care of their children, and their actions must survive strict\nscrutiny.\n\n On remand, Defendants will be free to produce evidence demonstrating that the parents\nconsented to some or all of Defendants’ actions vis-à-vis the children’s blood samples. To the\nextent that the parents provided informed consent to Defendants’ actions, no fundamental liberty\ninterest would have been impinged because the parents would not have been denied the right to\ncontrol their children’s medical care, although it may be that merely “present[ing] [parents] with\nan option to opt out of having their child’s blood used for research” as the district court seemed\nto believe occurred here, (R. 50, Order Granting Motions to Dismiss, Page ID# 838), is not\nsufficient if the default is for the state to use the samples for research. We note that consent to\nallow the state to conduct research on the children’s blood samples does not necessarily imply\nconsent to allow the state to sell the blood samples to third parties. Many questions about the\nnature and scope of parental consent remain, and the case should proceed to discovery so that the\nparties may produce evidence relating to these questions.\n\n On remand, the parties will also be able to produce evidence relating to whether\nDefendants had a compelling interest in retaining, transferring, and storing the children’s blood\nsamples after screening them for diseases, and whether Defendants’ means for achieving their\ninterest were narrowly tailored. Based on Plaintiffs’ allegations, it seems unlikely that\nDefendants will be able to demonstrate a compelling interest, as the health of the child is no\n\n\n 13The Complaint alleges that Plaintiffs did not give informed consent at all. Plaintiffs also allege that any\nconsent the parents purported to give was not general enough to permit all of Defendants’ actions with respect to the\nsamples. The district court seemed to suggest that the parents’ claims failed because they consented to the use of\ntheir children’s samples for research. (R. 50, Order Granting Motions to Dismiss, Page ID# 838.) To be clear,\nPlaintiffs do not concede that they consented to the state’s retention, transfer, storage, or use of their children’s\nblood samples. To the extent the district court held that Plaintiffs made such a concession, it erred in refusing to\n“accept[] [Plaintiffs’ factual allegations] as true,” as the posture of the case requires. Iqbal, 556 U.S. at 678. We\nemphasize that a fundamental right is at stake; it will be essential on remand to determine the precise nature and\nscope of any parental consent that occurred. Based on the facts alleged, Plaintiffs did not consent to all of\nDefendants’ actions with respect to the samples.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 26\n\n\nlonger at stake after the samples have been tested for life-threatening diseases.14 Plaintiffs allege\nthat Defendants conduct research on children’s stored blood samples and seek to derive profit\nfrom the children’s samples by selling them to third parties. On remand, Defendants may deny\nthat they have a present or future commercial interest in the blood samples (which, up to this\npoint in the litigation, they have not done) and may present evidence demonstrating other\npurposes for retaining, transferring, and storing the samples.\n\n We therefore reverse the district court’s dismissal of these claims and remand for further\nproceedings consistent with this opinion.\n\n Summary\n\n Because MDHHS, the Neonatal Biobank, and every individual Defendant sued in his or\nher official capacity are entitled to state sovereign immunity, dismissal with respect to Plaintiffs’\nsubstantive due process claims seeking damages from them was proper. The district court also\nproperly dismissed Plaintiffs’ claims seeking damages against every individual Defendant in his\nor her individual capacity because they were entitled to qualified immunity. The district court\nproperly dismissed Plaintiffs’ claims relating to the substantive due process rights of the children\nbecause these claims fail on their merits. However, the district court erred in dismissing\nPlaintiffs’ claims seeking prospective relief against the individual Defendants in their official\ncapacities relating to their alleged violation of the parents’ substantive due process rights in\nconnection with Defendants’ retention and ongoing storage of the blood samples, because these\nclaims are not subject to qualified immunity and fall within the Ex parte Young exception to state\nsovereign immunity. The parents have a fundamental right to direct the medical care of their\nchildren, and their claims may go forward so that the parties can present evidence related to\nDefendants’ actions and the legal implications of those actions. Specifically, the questions on\nremand will be whether the evidence demonstrates that Defendants’ actions interfered with the\n\n 14Plaintiffs concede that the state may have policies requiring parents to be notified but allege that these\npolicies are not always followed. The parties will have the opportunity on remand to introduce evidence as to these\npolicies and the extent to which Defendants followed them, and we wish to emphasize the importance of notifying\nparents as to any medical procedures that may have been conducted on their children and the importance of\nuniformity and consistency in how parents are notified. See Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003)\n(holding the state denied parents’ substantive due process rights by conducting a custodial interview of a child\n“without notifying or obtaining the consent of his parents”).\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 27\n\n\nparents’ right to direct their children’s medical care; and, to the extent they did interfere with the\nparents’ fundamental rights, whether those actions survive strict scrutiny.\n\n Thus, we affirm the district court’s dismissal of all of Plaintiffs’ substantive due process\nclaims except their claims against the individual Defendants in their official capacities to the\nextent that those claims seek injunctive and declaratory relief in connection with the alleged\nviolation of the parent’s substantive due process right by Defendants’ retention and ongoing\nstorage of the blood samples. With respect to those latter claims, we reverse and remand the\ncase for further proceedings consistent with this opinion.\n\nIII. Fourth Amendment Claims\n\n Standard of Review\n\n “We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss for\nfailure to state a claim.” Casias, 695 F.3d at 43. To survive a motion to dismiss, a complaint\n“does not need detailed factual allegations,” but should identify “more than labels and\nconclusions.” Twombly, 550 U.S. at 555 (citations omitted). A complaint also “must contain\nsufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”\nIqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).\n\n Analysis\n\n As discussed above, Plaintiffs have standing to bring only two categories of Fourth\nAmendment claims: claims for damages resulting from Defendants’ alleged violation of the\nchildren’s Fourth Amendment rights when their blood samples were collected and screened for\ndiseases; and claims for damages, as well as injunctive and declaratory relief, resulting from the\nalleged violation of the children’s Fourth Amendment rights by Defendants’ retention, transfer,\nand storage of the blood samples. We will address these claims in turn.\n\n 1. Alleged Violation of the Children’s Fourth Amendment Rights When Blood\n Samples Were Collected\n\n Plaintiffs seek damages based on the alleged violation of the children’s Fourth\nAmendment rights when their blood samples were collected and screened for diseases, arguing\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 28\n\n\nthat Defendants’ actions constituted a search for which a warrant was required. These damages\nclaims suffer the same defects as all of the other damages claims already discussed. Namely,\nstate sovereign immunity bars damages actions against all Defendants except the individual\nDefendants sued in their individual capacities, and qualified immunity bars damages actions\nagainst any of the individual Defendants sued in their individual capacities.\n\n With respect to qualified immunity, Plaintiffs concede that “[t]his is a case of first\nimpression” involving “a novel circumstance alleged to be occurring in violation of the Fourth\nand Fourteenth Amendments.” (Appellants’ Br. ix.) Even assuming that the children’s Fourth\nAmendment rights were violated by the initial drawing of their blood, these rights were not\nclearly established. On their face, these claims might appear to present a closer call than the\nprevious claims, in that the Supreme Court has held that drawing blood does constitute a Fourth\nAmendment violation in some circumstances. Schmerber v. California, 384 U.S. 757, 767–68\n(1966) (holding that when a police officer directs that a suspect’s blood be drawn in order to\nproduce evidence in connection with a criminal investigation, the drawing of blood “plainly\nconstitute[s] [a] search[] of [a] ‘person[],’” and is therefore subject to “respected relevant Fourth\nAmendment standards of reasonableness”). However, this does not indicate a clearly established\nright, as this case is far from a straightforward application of Schmerber. After Schmerber, it is\ntrue that any reasonable medical professional knows or should know that such professionals\ncannot draw blood for law enforcement purposes without a medical reason or the patient’s\nconsent, unless they obtain a search warrant. But Defendants claim that their motivation for\ndrawing the children’s blood—or at least part of their motivation—is to provide the children with\nmedical care.\n\n Because our case law does not clearly establish in what circumstances the Fourth\nAmendment bars a medical professional from drawing a child’s blood for medical purposes\nwithout parental notification or consent—or whether such medical purposes must be the primary\nor predominant motivation for the drawing of blood—the individual Defendants in this case are\nentitled to qualified immunity. In Schmerber, the defendant’s blood was drawn at the direction\nof a police officer seeking evidence that the defendant had driven while intoxicated. 384 U.S. at\n758–59. By contrast, Plaintiffs have never alleged that the state had an evidence-gathering\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 29\n\n\nmotive for the drawing of blood in this case. We have noted that there remains a substantial\nquestion as to whether drawing blood for the purpose of screening for diseases constitutes a\nsearch or seizure for Fourth Amendment purposes. See Hearring v. Sliwowski, 712 F.3d 275,\n281 (6th Cir. 2013) (“This court has not taken a definitive position on whether the Fourth\nAmendment’s protection against unreasonable searches applies to the provision of medical\nservices by government-employed health-care professionals.”). In Hearring, we held that a\ndefendant nurse was entitled to qualified immunity because “existing precedents did not give\n[her] fair warning that her medical assessments were subject to the Fourth Amendment’s\nreasonableness requirement, and accordingly the right at issue was not clearly established.” Id.\nat 282–83. We did not reach the merits of the plaintiff’s claim in Hearring, nor have we settled\nthis issue in any decision after Hearring. Id. Thus, Defendants are entitled to qualified\nimmunity because Plaintiffs have failed to show that “the right at issue was clearly established at\nthe time of [their] alleged misconduct.” Barker, 649 F.3d at 433.\n\n State sovereign immunity and qualified immunity therefore bar all of Plaintiffs’ claims\nalleging that the children’s Fourth Amendment rights were violated when Defendants drew their\nblood and screened it for diseases, and we decline to exercise our discretion to decide whether\nthese actions actually violated the children’s Fourth Amendment rights. See Pearson, 555 U.S.\nat 236. As our discussion of this issue in Hearring demonstrates, this is a situation where “it is\nplain that a constitutional right is not clearly established but far from obvious whether in fact\nthere is such a right.” Pearson, 555 U.S. at 237. We therefore decline to rule on whether the\ninitial drawing of blood violated the children’s Fourth Amendment rights, and we affirm the\ndistrict court solely on qualified immunity and state sovereign immunity grounds.15\n\n 2. Alleged Violation of the Children’s Fourth Amendment Rights Based on Ongoing\n Storage of Blood Samples\n\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\nviolation of the children’s Fourth Amendment rights by Defendants’ retention of the blood\n\n 15We note again the possibility that future plaintiffs may have standing to seek prospective relief relating to\nthe risk that their future children’s blood will be drawn at birth. See supra, footnote 10. This possibility further\nsupports our decision not to exercise our discretion to decide the issue in this case, where such decision would seem\nto be “an essentially academic exercise.” Pearson, 555 U.S. at 237.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 30\n\n\nsamples after the samples have been screened for diseases, by Defendants’ transfer of the\nsamples to the Neonatal Biobank, and by Defendants’ ongoing storage of the samples for further\nuse by the state. Due to state sovereign immunity and qualified immunity, Plaintiffs cannot\nrecover damages against Defendants. Due to state sovereign immunity, Plaintiffs cannot seek\ninjunctive or declaratory relief against MDHHS or the Neonatal Biobank. See Thiokol Corp.,\n987 F.2d at 381. But Plaintiffs can seek such prospective relief against the individual\nDefendants in their official capacities. See id.\n\n We therefore proceed to the merits of Plaintiffs’ claims that Defendants’ ongoing storage\nof their children’s blood samples violates the children’s Fourth Amendment rights. The district\ncourt dismissed these ongoing seizure claims for lack of standing. For the reasons discussed\nabove, this was error. In fact, Plaintiffs have stated plausible claims that the ongoing retention\nand storage of the children’s blood samples for further use by the state violates the children’s\nFourth Amendment rights. Accordingly, the district court erred in dismissing these claims, and\nwe reverse and remand.\n\n First, we note that this claim is analytically distinct from the question raised in the\nprevious section of whether drawing the children’s blood and screening it for diseases violated\nthe children’s Fourth Amendment rights—a question that we decline to address in this opinion\nand will not be before the district court on remand. It is not necessary to decide whether the\ndrawing of blood was an unconstitutional search or seizure in order to decide whether the\nretention, storage, or use of the blood samples violate the children’s Fourth Amendment rights.\nThis is because Defendants’ ongoing storage and potential future use of the blood samples might\nbe unconstitutional regardless of whether Defendants’ completed actions of drawing and\nscreening the children’s blood for disease were constitutional. If drawing and screening the\nblood was unconstitutional, it is still possible that the ongoing retention, storage, or use of the\nsample constitutes a separate, independent violation. See Skinner, 489 U.S. at 616 (noting that\nafter an unconstitutional blood draw occurs, “[t]he ensuing chemical analysis of the sample to\nobtain physiological data is a further invasion of the tested employee’s privacy interests”\n(emphasis added)). And if drawing and screening the blood was constitutional, it may still have\nbecome an illegal seizure if Plaintiffs suffered a further, unlawful, deprivation of their interests at\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 31\n\n\nsome later point. See, e.g., United States v. Jacobsen, 466 U.S. 109, 124–25 (1984) (holding that\na legal seizure of a package became illegal when officers conducted a field test on it because the\ntest “affect[ed] respondents’ possessory interests . . . by destroying a quantity of the powder\n[thereby] convert[ing] what had been only a temporary deprivation of possessory interests into a\npermanent one”).\n\n It is apparent in the case law that the duration of a seizure affects its constitutionality.\nFor example, the Supreme Court has long recognized that what begins as a lawful seizure can\nbecome unlawful if it continues for an unreasonable amount of time. See United States v. Place,\n462 U.S. 696, 707–09 (1983) (“[T]he brevity of the invasion of the individual’s Fourth\nAmendment interests is an important factor in determining whether the seizure is\n[constitutional].”). This Court has similarly recognized that extended seizures pose unique\nconstitutional problems. See United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005) (“[W]hile\na Terry stop may be constitutionally permissible initially, it may become an impermissible\n‘seizure if it occurs over an unreasonable period of time or under unreasonable circumstances.’”\n(quoting United States v. Orsolini, 300 F.3d 724, 729–30 (6th Cir. 2002)); Farm Labor Org.\nComm. v. Ohio State Highway Patrol, 308 F.3d 523, 546 (6th Cir. 2002) (holding that an officer\npossessed reasonable suspicion that “would [have] permit[ted] [him] to detain the [plaintiffs’]\ngreen cards . . . until the following day,” but that a “four-day detention of the[ir] green cards . . .\nwas unreasonable in duration”).\n\n To evaluate the constitutionality of a seizure’s duration, it is necessary to consider\nwhether the duration is “reasonably needed to effectuate those purposes [justifying the seizure].”\nUnited States v. Sharpe, 470 U.S. 675, 685 (1985). It does not seem that the health of the child\njustifies the state in taking any actions with respect to the blood samples after it has finished\nscreening the samples for diseases. As discussed, Plaintiffs allege that Defendants conduct\nresearch on children’s stored blood samples and seek to derive profit from the children’s samples\nby selling them to third parties. If this is indeed Defendants’ purpose in retaining the children’s\nblood samples, then their ongoing, indefinite seizure of the samples is unreasonable. For this\nreason, Plaintiffs have plausibly stated a claim upon which relief can be granted, and the district\ncourt erred in dismissing their Fourth Amendment claims relating to the ongoing storage and\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 32\n\n\npotential future use of the blood samples. The case should proceed to discovery so that the\nparties may produce evidence of the state’s purposes for retaining, storing, and using the\nchildren’s blood samples after they have been screened for diseases.\n\n On remand, whether Plaintiffs consented to any aspect of Defendants’ retention, storage,\nor future use of the blood samples will also affect whether there is an ongoing seizure in\nviolation of the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)\n(“It is [] well settled that one of the specifically established exceptions to the requirements of\nboth a warrant and probable cause is a search that is conducted pursuant to consent.”).\n\n Summary\n\n Because MDHHS, the Neonatal Biobank, and every individual Defendant sued in his or\nher official capacity are entitled to state sovereign immunity, dismissal with respect to Plaintiffs’\nFourth Amendment claims seeking damages from them was proper. The district court also\nproperly dismissed Plaintiffs’ claims seeking damages against every individual Defendant in his\nor her individual capacity because they were entitled to qualified immunity. However, the\ndistrict court erred in dismissing Plaintiffs’ claims seeking prospective relief against the\nindividual Defendants in their official capacities relating to their alleged violation of the\nchildren’s Fourth Amendment rights in connection with the ongoing storage, use, or transfer of\nthe blood samples, because Plaintiffs have standing to bring these claims and they are not subject\nto qualified immunity or state sovereign immunity. Plaintiffs have stated a plausible claim that\nDefendants’ actions violated their Fourth Amendment rights.\n\n Thus, we affirm the district court’s dismissal of all of Plaintiffs’ Fourth Amendment\nclaims except their claims against the individual Defendants in their official capacities to the\nextent that those claims seek injunctive and declaratory relief in connection with Defendants’\nongoing retention, transfer, and storage of the blood samples. With respect to those latter claims,\nwe reverse and remand the case for further proceedings consistent with this opinion.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 33\n\n\n CONCLUSION\n\n For the reasons set forth above, we AFFIRM IN PART and REVERSE IN PART the\ndistrict court’s judgment and REMAND for further proceedings consistent with this opinion.\n\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 34\n\n\n _________________\n\n CONCURRENCE\n _________________\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Adam KANUSZEWSKI, Et Al., Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal Biobank, Incorporated, AKA Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0122p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n ADAM KANUSZEWSKI, et al., ┐\\n Plaintiffs-Appellants, │\\n │\\n │\\n v. │\\n > No. 18-1896\\n │\\n MICHIGAN DEPARTMENT OF HEALTH AND HUMAN │\\n SERVICES; NICK LYON; SANDIP SHAH; SARAH LYON- │\\n CALLO; MARY KLEYN; MICHIGAN NEONATAL │\\n BIOBANK, INCORPORATED, aka Michigan Neonatal │\\n Biorepository; ANTONIO YANCEY, │\\n Defendants-Appellees. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Bay City.\\n No. 1:18-cv-10472—Thomas L. Ludington, District Judge.\\n\\n Argued: March 13, 2019\\n\\n Decided and Filed: June 10, 2019\\n\\n Before: MERRITT, CLAY, and ROGERS, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for\\nAppellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for\\nAppellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, PEAR SPERLING\\nEGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio\\nYancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin,\\nOFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees\\nMichigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-\\nCallo, and Mary Kleyn. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC,\\nHemlock, Michigan, for Appellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY,\\nDetroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy,\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 2\\n\\n\\nJerold Lax, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees\\nNeonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal\\nBioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,\\nMichigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon,\\nSandip Shad, Sarah Lyon-Callo, and Mary Kleyn.\\n\\n CLAY, J., delivered the opinion of the court in which MERRITT and ROGERS, JJ.,\\njoined. ROGERS, J. (pp. 34–35), delivered a separate concurrence.\\n\\n _________________\\n\\n OPINION\\n _________________\\n\\n CLAY, Circuit Judge. Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and\\nLynnette Wiegand, individually and as parent-guardians to their minor children, appeal the\\ndistrict court’s grant of a motion to dismiss Plaintiffs’ claims filed by Defendants Michigan\\nDepartment of Health and Human Services and its employees1 being sued in their official and\\nindividual capacities; and Michigan Neonatal Biobank, Incorporated, and its Director, Dr.\\nAntonio Yancey, sued in his official and individual capacities. For the reasons set forth below,\\nwe AFFIRM IN PART and REVERSE IN PART the district court’s judgment and REMAND\\nfor further proceedings consistent with this opinion.\\n\\n BACKGROUND\\n\\n Plaintiffs’ alleged constitutional violations concern Michigan’s Newborn Screening\\nProgram (“NSP”). The NSP, which Michigan has operated since the 1960s, involves Defendant\\nMichigan Department of Health and Human Services and its agents collecting blood samples\\n(sometimes referred to as “blood spots”) with a filter paper collection device known as a Dried\\nBlood Spot card from nearly every newborn baby in Michigan, to test for various diseases. On\\nApril 30, 2018, Plaintiffs filed their First Amended Complaint for Injunctive and Declaratory\\n\\n\\n\\n\\n 1These employees are Nick Lyons, Dr. Sandip Shah, Dr. Sarah Lyon-Callo, and Mary Kleyn. Harry\\nHawkins was named as a defendant in the complaint but has since died, and the dismissal of Plaintiffs’ claims\\nagainst him are not on appeal.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 3\\n\\n\\nRelief with Possible Money Damages for Constitutional Violations. According to the\\nComplaint,2 the facts are as follows:\\n\\n Plaintiffs Adam Kanuszewski and Ashley Kanuszewski have three minor children born\\nover the last eleven years. Plaintiff Shannon Laporte has two minor children born over the last\\neleven years. Plaintiff Lynnette Wiegand has four minor children born over the last eight years.\\nThe Complaint alleges, with respect to the NSP, that blood is drawn from newborns without the\\nconsent or knowledge of the newborns’ parents. Once collected, the blood samples are tested for\\nover fifty maladies, disorders, or diseases. Defendants retain the samples after screening them\\nfor these diseases; the samples are transferred to Defendant Michigan Neonatal Biobank, a non-\\nprofit corporation, under the custody and control of Defendant Dr. Antonio Yancey, where they\\nare stored for future use by the state. Plaintiffs allege that Defendants lack parental consent to\\nretain, transfer, store, or otherwise use the children’s blood samples after they have been\\nscreened for diseases.3\\n\\n Plaintiffs allege that despite Defendants’ assurances that all blood samples are secure and\\nnot identifiable to the individuals from whom they were taken, some samples kept in storage at\\nthe Neonatal Biobank have been given up pursuant to state court orders and some samples either\\nhave been or are in the process of being sold to third-party businesses and researchers. Plaintiffs\\ndo not allege that the children’s specific blood samples have been sold or given up pursuant to a\\ncourt order.\\n\\n Plaintiffs allege that Defendants violated their substantive due process rights by not\\nallowing them to decide whether to accept or reject the medical procedure in question prior to the\\ncollection of their babies’ blood. Plaintiffs allege that Defendants “deprived the Infants [of] their\\n\\n 2Plaintiffs argue that the district court “authorized [], at least in part,” Defendants’ allegedly improper\\nattachment of documents to its motion to dismiss. (Appellants’ Br. 41–49.) Because we review de novo the district\\ncourt’s decisions in this case, Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012), and because we\\nmay decide the issues on appeal without reference to any documents attached to Defendants’ motion to dismiss, we\\nneed not address the matter of the attachment.\\n 3The Complaint seems to equivocate slightly, stating that “[a]t some point during the hospital stay for the\\nbirth of the Infants, the Parents might have been presented with a card giving the Parents an option of whether they\\nwanted their Infants’ already illegally seized and tested blood to be donated to medical research”—but Plaintiffs\\nallege that any purported consent was “not general or informed” and was therefore ineffective. (R. 26, Complaint,\\nPage ID# 313.)\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 4\\n\\n\\nliberty interest in their guardians self-making informed personal and private medical procedure\\ndecisions without due process of law.” (R. 26, Complaint, Page ID# 325.) Plaintiffs allege that\\ncollecting the blood samples constituted an unconstitutional search or seizure under the Fourth\\nAmendment. Plaintiffs allege that the transfer of the samples to, and the samples’ storage with,\\nDefendant Neonatal Biobank constituted a further, ongoing seizure for which the Neonatal\\nBiobank was “a state actor or . . . otherwise liable via civil conspiracy under 42 U.S.C. § 1983\\ndespite being formed as a non-profit domestic corporation.” (R. 26, Complaint, Page ID# 328,\\n329.)\\n\\n Plaintiffs seek declaratory judgment declaring Defendants’ conduct violative of the\\nFourth and Fourteenth Amendments. Plaintiffs seek many forms of prospective injunctive relief,\\nincluding the following: to halt “the illegal processes and procedures”; to halt continued\\npossession and retention of all blood samples taken, transferred, or stored without informed\\nconsent; and to command Defendants “to destroy all data collected or extracted regarding the\\nInfants, and return to the Parents all blood samples and spots of the Infants” that were obtained\\nwithout informed consent. (R. 26, Complaint, Page ID# 329–32.) Finally, Plaintiffs seek\\ndamages in connection with Defendants’ alleged constitutional violations.\\n\\n Defendants filed motions to dismiss Plaintiffs’ claims. After briefing, the district court\\ngranted Defendants’ motions to dismiss and dismissed Plaintiffs’ Complaint with prejudice.\\nPlaintiffs then filed this timely appeal.\\n\\n DISCUSSION\\n\\n Plaintiffs allege that Defendants, through their operation of and participation in the NSP,\\nhave violated and continue to violate their substantive due process rights because blood is drawn\\nfrom the children and retained without parental consent. Plaintiffs also allege that Defendants\\nhave violated and continue to violate the Fourth Amendment rights of the children because\\ndrawing the children’s blood constituted a search for which a warrant was required. Before we\\nanalyze whether Defendants have violated Plaintiffs’ constitutional rights, we will address the\\nquestion of Plaintiffs’ standing to bring these claims.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 5\\n\\n\\nI. Standing\\n\\n Defendants argue that Plaintiffs lack standing to bring their claims.\\n\\n This Court reviews de novo determinations of standing. Shearson v. Holder, 725 F.3d\\n588, 592 (6th Cir. 2013). Because standing doctrine comes from Article III’s case-or-\\ncontroversy requirement, it is jurisdictional and must be addressed as a threshold matter.\\nNikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017). Standing requires Plaintiffs to show 1) that\\nthey have suffered an injury-in-fact that was 2) caused by Defendants’ conduct and that 3) this\\nCourt can likely redress the injury with a decision for Plaintiffs. Id. at 315–16. Plaintiffs, as the\\nparties invoking federal jurisdiction, bear the burden of proving the three elements of standing.\\nShearson, 725 F.3d at 592. At the pleadings stage, a plaintiff “must ‘clearly . . . allege facts\\ndemonstrating’ each element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting\\nWarth v. Seldin, 422 U.S. 490, 518 (1975)).\\n\\n The questions of standing in this case concern the injury-in-fact requirement. To satisfy\\nthis requirement, Plaintiffs must allege that they “have suffered an injury in fact, which is\\n‘concrete, particularized, and actual or imminent.’” Shearson, 725 F.3d at 592 (quoting Clapper\\nv. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). The threat of future harm can satisfy this\\nrequirement as long as there is a “substantial risk” that the harm will occur. Clapper, 568 U.S. at\\n414 n.5 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010). By the same\\ntoken, “‘[a]llegations of possible future injury’ are not sufficient.” Id. at 409 (emphasis in\\noriginal) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The Supreme Court has\\nnoted that “a highly attenuated chain of possibilities [] does not satisfy the requirement that\\nthreatened injury must be certainly impending.” Id. at 410.\\n\\n The distinction between past and ongoing or future harms is significant because the type\\nof harm affects the type of relief available. Past harm allows a plaintiff to seek damages, but it\\ndoes not entitle a plaintiff to seek injunctive or declaratory relief. This is because the fact that a\\nharm occurred in the past “does nothing to establish a real and immediate threat that” it will\\noccur in the future, as is required for injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95,\\n106 (1983). Obtaining standing for declaratory relief has the same requirements as obtaining\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 6\\n\\n\\nstanding for injunctive relief. National Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.\\n1997) (“When seeking declaratory and injunctive relief, a plaintiff must show actual present\\nharm or a significant possibility of future harm in order to demonstrate the need for pre-\\nenforcement review.”).\\n\\n Our standing analysis in this case is complicated because Plaintiffs raise numerous\\nclaims, each of which must independently meet the requirements for standing. Town of Chester\\nv. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (“[A] plaintiff must demonstrate standing for\\neach claim he seeks to press and for each form of relief that is sought.” (quoting Davis v. Fed.\\nElection Comm’n, 554 U.S. 724, 734 (2008)). Further, within each claim we must determine\\nwhether the alleged harm affords Plaintiffs standing to seek injunctive and declaratory relief, or\\nonly damages. Accordingly, to properly analyze standing, we will disaggregate Plaintiffs’\\nclaims and the forms of relief sought. See Town of Chester, 137 S. Ct. at 1650.\\n\\n As a brief overview, there are two types of constitutional violations alleged (substantive\\ndue process and the Fourth Amendment) and two types of Plaintiffs (the parents and the\\nchildren). Under the broader heading of substantive due process, Plaintiffs allege violations of\\nthe “children’s right to refuse medical treatment” and of the “parents’ own fundamental liberty\\ninterest in the care, custody and management of their children.”4 (Appellants’ Br. 21 (emphasis\\nadded).) Plaintiffs also claim that Defendants violated the children’s Fourth Amendment rights.\\nWith respect to the temporal aspect of their harm, Plaintiffs complain of the completed collection\\n\\n\\n 4Defendants argue that because Plaintiffs captioned their Complaint as “[Parents’ names] as parent-\\nguardians and next friend to their minor children,” only the rights of the children—not their parents—are before us.\\n(Appellee State Defendants’ Br. 13–14.) Rule 17(c) of the Federal Rules of Civil Procedure allows an action to be\\nbrought on behalf of a minor by “a general guardian” or if the minor “does not have a duly appointed representative\\n. . . by a next friend.” Fed. R. Civ. P. 17(c). Rule 10(a) requires that a complaint’s title “name all the parties.” Fed.\\nR. Civ. P. 10(a). If the Plaintiffs intended to raise the rights of the parents, they might instead have captioned their\\ncase “[Parents’ names], individually, and as parent-guardians and next friend to their minor children . . .”; however,\\n“errors in captions are common and need not ‘be viewed as [] fatal defect[s].’” Hawkins v. Wash. Metro. Area\\nTransit Auth., 311 F. Supp. 3d 94, 101 (D.D.C. 2018) (quoting 5A Wright & Miller, Federal Practice & Procedure\\n§ 1321 (3d ed. 2004 & Supp. 2017)). Our touchstone is adequate notice, and the Federal Rules of Civil Procedure\\n“evidence a ‘clear preference to resolve disputes on their merits.’” Hawkins, 311 F. Supp. 3d at 102 (quoting Cohen\\nv. Bd. of Trustees of the Univ. of Dist. of Columbia, 819 F.3d 476, 482–83 (D.C. Cir. 2016)). Because the\\nComplaint provided Defendants adequate notice that the parents were asserting their own rights in addition to those\\nof their children, Plaintiffs’ claims involving the rights of the parents are properly before us. (See R. 26, Complaint,\\nPage ID# 305 (“Plaintiffs in this action are the Infants themselves and each parent as parents-guardians of one or\\nmore children born in the State of Michigan.”))\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 7\\n\\n\\nof the children’s blood samples, as well as the ongoing storage of the samples and the risk of the\\nfuture use of the samples by third parties.\\n\\n To simplify this complex analysis, we will divide it into four relevant questions: 1) Did\\nthe children suffer an injury-in-fact when blood samples were taken from them? 2) Did their\\nparents suffer an injury-in-fact when their children’s blood samples were taken? 3) Do the\\nchildren suffer an injury-in-fact from either the ongoing storage of their samples or the risk of\\nfuture use of the samples? 4) Do the parents suffer an injury-in-fact from either the ongoing\\nstorage of their children’s samples or the risk of future use of the samples? The answers to these\\nquestions may determine whether and in what forms Plaintiffs may seek relief under each of\\ntheir claims.\\n\\n 1. Whether the children suffered an injury-in-fact when blood samples were taken\\n from them\\n\\n Plaintiffs assert that the children have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on injuries that occurred when their blood was initially\\ndrawn and screened for diseases. Plaintiffs argue that the children’s substantive due process\\nright to have their parents direct their medical care was violated when Defendants drew a sample\\nof the children’s blood without first obtaining parental consent, and that this drawing of blood\\nconstituted an injury-in-fact affording the children standing to pursue their substantive due\\nprocess claims. Plaintiffs also claim that the children’s Fourth Amendment rights were violated\\nwhen Defendants drew a sample of the children’s blood because this constituted a warrantless\\nsearch to which no exception to the warrant requirement applied, and that this drawing of blood\\nconstituted an injury-in-fact affording the children standing to pursue their Fourth Amendment\\nclaims. Because the blood samples have already been collected, the children’s Fourth and\\nFourteenth Amendment claims arising out of the initial drawing of blood both pertain to a\\ncompleted harm and therefore afford the children standing to seek only damages—not injunctive\\nor declaratory relief—resulting from this alleged violation. See Lyons, 461 U.S. at 105.\\n\\n We begin our injury-in-fact analysis by noting that it can be very invasive to draw an\\nindividual’s blood. Drawing blood involuntarily denies an individual bodily autonomy and\\ninterferes with one’s bodily integrity. Missouri v. McNeely, 569 U.S. 141, 148 (2013). Drawing\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 8\\n\\n\\nblood can also violate one’s privacy by revealing sensitive, confidential information about that\\nindividual. See id.; Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989)\\n(noting that “chemical analysis of urine, [or] blood, can reveal a host of private medical facts\\nabout an [individual], including whether he or she is epileptic, pregnant, or diabetic”).\\n\\n With respect to their Fourth Amendment claims, Plaintiffs allege that the children’s\\nFourth Amendment rights were violated when the state drew a blood sample from them and\\ntested it for diseases. Our standing analysis does not consider the merits of Plaintiffs’ claims;\\ninstead, we must assume that “if proved in a proper case,” Defendants’ alleged practices “would\\nbe adjudged violative of the [Plaintiffs’] constitutional rights.” Warth, 422 U.S. at 502. The\\ncompleted harm from Defendants’ alleged Fourth Amendment violation affords the children\\nstanding to seek damages, but because there is no allegation that the state will once again collect\\nblood from the children in the future, the children lack standing to pursue a claim for injunctive\\nor declaratory relief. See Lyons, 461 U.S. at 105 (denying standing to pursue injunctive relief\\nbecause the fact “[t]hat Lyons may have been illegally choked by the police . . . , while\\npresumably affording Lyons standing to claim damages . . . , does nothing to establish a real and\\nimmediate threat that he would again [be illegally choked]”).\\n\\n With respect to Plaintiffs’ substantive due process claim, this same reasoning applies.\\nThe completed harm from Defendants’ alleged substantive due process violation affords the\\nchildren standing to seek damages, but there is no allegation of a real or immediate threat that the\\nstate will do so again.\\n\\n Thus, with respect to their Fourth Amendment and substantive due process claims\\nconcerning the initial drawing of blood, the children have standing to pursue damages but not\\ninjunctive or declaratory relief.\\n\\n 2. Whether the parents suffered an injury-in-fact when their children’s blood\\n samples were taken\\n\\n Plaintiffs similarly assert that the parents have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on injuries that occurred when their children’s blood was\\ninitially drawn and screened for diseases. Plaintiffs argue that the parents’ substantive due\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 9\\n\\n\\nprocess right to direct their children’s medical care was violated when Defendants drew a sample\\nof the children’s blood without first obtaining parental consent, and that this drawing of blood\\nconstituted an injury-in-fact affording the parents standing to pursue their substantive due\\nprocess claims. But this is a completed harm that only gives the parents standing to pursue\\ndamages resulting from this alleged violation. See Lyons, 461 U.S. at 105.\\n\\n If parents have a substantive due process right to make decisions relating to their\\nchildren’s medical care, then the parents in this case have suffered an injury-in-fact from having\\nbeen denied the exercise of the right, which affords them standing to pursue damages. However,\\nthe parents cannot seek prospective relief because they do not allege a real or immediate threat\\nthat the state will repeat the alleged violation. Perhaps the parents could have argued (although\\nthey did not) that the threat remains because they have the ability to have more children, who\\nwould at birth be subject to having their blood drawn, which would again infringe upon the\\nparents’ substantive due process rights. However, even if this argument were raised, without\\nfurther description of the parents’ concrete reproductive plans it would be foreclosed by the\\nSupreme Court’s decision in Lujan v. Defenders of Wildlife. 504 U.S. 555, 564 (1992) (“‘[S]ome\\nday’ intentions—without any description of concrete plans, or indeed even any specification of\\nwhen the some day will be—do not support a finding of the ‘actual or imminent’ injury that our\\ncases require.”).\\n\\n Thus, like the children, the parents have standing to pursue damages, but not injunctive or\\ndeclaratory relief with regard to the initial taking of the blood samples from the children.\\n\\n 3. Whether the children suffer an ongoing injury-in-fact from the storage of their\\n samples or face a substantial risk of future harm from the use of their samples\\n\\n Plaintiffs argue that the children have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on ongoing injuries and the threat of further injuries\\nresulting from the transfer and storage of their blood samples, which they allege violated the\\nFourth and Fourteenth Amendments. Because the storage of the blood samples represents an\\nongoing violation, the children will be able to pursue all three forms of relief, i.e., injunctive,\\ndeclaratory, and damages, in connection with both their Fourth and Fourteenth Amendment\\nclaims.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 10\\n\\n\\n We begin with Plaintiffs’ claims relating to the children’s Fourth Amendment rights.\\nPlaintiffs allege violations of the children’s Fourth Amendment rights in connection with\\nDefendants’ transfer and storage of the blood samples. Assuming that the storage is a Fourth\\nAmendment violation, it is the sort of actual, ongoing harm that affords a plaintiff standing to sue\\nfor damages, as well as injunctive and declaratory relief. See National Wildlife Federation v.\\nU.S. Army Corps of Engineers, 170 F. Supp. 3d 6, 14 (D.D.C. 2016) (“Still viable at this juncture\\nis the conservation groups’ claim of an actual ongoing harm to their recreational and aesthetic\\ninterests, which supports standing . . . .”). Thus, Plaintiffs have alleged an injury-in-fact\\nsufficient for standing to seek all three types of relief.\\n\\n With respect to Plaintiffs’ claims relating to the children’s substantive due process rights,\\nPlaintiffs assert two types of injury. One asserted injury is too speculative to constitute an\\ninjury-in-fact for prospective relief, but the other provides the children with standing for all three\\ntypes of relief sought.\\n\\n In their complaint, Plaintiffs allege that the children’s samples were sent to the Neonatal\\nBiobank and that it is within the bank’s power to sell or otherwise use the samples for state\\npurposes, even if it has not yet done so. At no point in this litigation have Defendants denied\\nthat the Neonatal Biobank possesses such authority—though this might be because no Defendant\\nhas yet answered Plaintiffs’ Complaint. Nor have Defendants denied that the state has a present\\nor future commercial interest in the blood samples, inasmuch as the Neonatal Biobank may wish\\nto sell these samples to third parties. Plaintiffs also allege that “there are no statutory legal\\nprotections on who may access, use, or utilize the private medical and genetic information of the\\nInfants.” (R. 26, Complaint, Page ID# 317.) Drawing on these allegations, Plaintiffs’ first\\nasserted injury is their fear of “the misuse of that information” and “the possibility of\\ndiscrimination against their Infants and perhaps even relatives through the use of such blood\\nsamples and research activity thereon.” (Id., Page ID# 320–21.) Plaintiffs argue their fears are\\n“well-founded” since blood spots have “resulted in the arrest of an alleged killer” and “the\\nwrongful arrest of persons who were not guilty of any crime.” (Id., Page ID# 318.)\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 11\\n\\n\\n Plaintiffs’ first asserted injury does not meet the injury-in-fact requirement, because it\\nrelates to a possibility of future harm that is not concrete, particularized, or imminent.5 The\\nSupreme Court has explained that an alleged future harm cannot be “too speculative . . .\\n[but rather must be] certainly impending.” Clapper, 568 U.S. at 409 (emphasis in original)\\n(quoting Lujan, 504 U.S. at 564 n.2). The Court clarified that this does not require “literal[]\\ncertain[ty]” but at least a “substantial risk” that the harm will occur. Id. at 414 n.5 (quoting\\nMonsanto Co., 561 U.S. at 153).\\n\\n The primary problem with Plaintiffs’ first asserted injury is that for the injury to occur,\\nthe researchers or businesses will have to use the “deeply private medical and genetic\\ninformation” contained in the blood samples to discriminate against the children or their families,\\nor otherwise harm them. (R. 26, Complaint, Page ID# 320.) The Supreme Court has made clear\\nthat “mere[] speculat[ion] and . . . assumptions about” how the government will operate one of\\nits programs is not a sufficiently particularized harm to meet the injury-in-fact requirement.\\nClapper, 568 U.S. at 412. This is true even where the government has the power to do what a\\nplaintiff fears it might. Id. Plaintiffs have not alleged facts that demonstrate a substantial risk\\nthat they will suffer discrimination. Rather, Plaintiffs’ first theory of harm consists largely of\\nspeculation and therefore cannot satisfy the injury-in-fact requirement. Cf. Clapper, 568 U.S. at\\n410 (finding no injury-in-fact where plaintiffs feared that a series of events would occur which\\nwould ultimately result in harm because the threat of harm was too speculative).\\n\\n Plaintiffs’ second theory of injury relates to the infringement of the children’s protected\\nprivacy interests, and this theory is more persuasive. This theory affords the children standing to\\n\\n\\n\\n 5Defendants also argue that this is not a cognizable harm because a parent or guardian may request that a\\nblood sample not be used for research “by contacting [the Department of Community Health] by telephone or mail”\\nor request that a sample be destroyed if they provide information “to confirm that they have authority to make such a\\nrequest.” (R. 26-3, MDCH Manual, Page ID# 336.) The existence of these options, Defendants argue, means that\\n“there is a remedy available outside of litigation to prevent th[e] speculative harm [of misuse or discrimination] from\\noccurring.” (Appellee Biobank Br. 9.) However, Defendants cite no cases explaining what the significance of\\nalternate remedies being available has in standing analysis, and Plaintiffs correctly point out that this argument\\nsuggests there is an exhaustion-of-remedies requirement to § 1983 claims, which Supreme Court precedent has\\nexpressly rejected. See Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy [under § 1983] is\\nsupplementary to [any] state remed[ies], and the latter need not be first sought and refused before the federal one is\\ninvoked.”).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 12\\n\\n\\npursue damages, as well as prospective relief, in connection with their substantive due process\\nclaims relating to the transfer and ongoing storage of their blood samples.\\n\\n With respect the children’s standing to pursue damages, the Supreme Court has held that\\nconducting chemical analysis on blood samples invades the subject’s privacy interests. Skinner,\\n489 U.S. at 616. This is because “chemical analysis of urine, [or] blood, can reveal a host of\\nprivate medical facts about an [individual], including whether he or she is epileptic, pregnant, or\\ndiabetic.” Id. at 617. Therefore, if we assume that Defendants violated the children’s substantive\\ndue process rights when they tested the blood samples for various diseases, the children have\\nsuffered a completed injury-in-fact based on Defendants’ infringement upon their privacy\\ninterest, which affords them standing to seek damages. See Lyons, 461 U.S. at 105.\\n\\n Further, with respect to prospective relief, there is a substantial risk that additional\\nchemical analysis of the samples will occur, meaning that this second theory of injury affords the\\nchildren standing to seek injunctive and declaratory relief as well. The problem with the chain of\\ninferences in the first theory of injury is that it is too speculative to assert that third parties may\\nuse the information contained in the blood samples to discriminate against Plaintiffs. However,\\nit is not too speculative to assert that the state or third parties may conduct chemical analysis on\\nthe blood samples—indeed, Plaintiffs allege that this is the very reason why the state retains the\\nsamples and why third parties wish to obtain them. Cf. Galaria v. Nationwide Mut. Ins. Co., 663\\nF. App’x 384, 388 (6th Cir. 2016) (finding injury-in-fact where hackers had obtained plaintiffs’\\ndata but had not yet misused it because “a reasonable inference can be drawn that the hackers\\nwill use the victims’ data for” fraudulent purposes). Because there is a substantial risk that the\\nchildren will suffer further harm if and when the state or third parties conduct chemical analysis\\non the children’s samples, the children have standing to pursue prospective relief.\\n\\n Thus, the children have standing to seek injunctive and declaratory relief, as well as\\ndamages, in connection with their Fourth and Fourteenth Amendment claims relating to the\\ntransfer and storage of their blood samples.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 13\\n\\n\\n 4. Whether the parents suffer an ongoing injury-in-fact from the storage of their\\n children’s samples or face a substantial risk of future harm from the use of the\\n samples\\n\\n Finally, Plaintiffs assert that the parents have standing to raise claims for injunctive and\\ndeclaratory relief and damages based on ongoing injuries and the threat of further injuries\\nresulting from the transfer and storage of their children’s blood samples, which they allege\\nviolate the Fourteenth Amendment. The parents have standing to seek all three forms of relief.\\n\\n The Complaint states that “the Parents are concerned and fear about the misuse of that\\ninformation and fear the possibility of discrimination against their Infants and perhaps even\\nrelatives through the use of such blood samples and research activity thereon.” (R. 26,\\nComplaint, Page ID# 320–21.) This fails as an injury-in-fact for the reasons discussed in the\\nprevious section. However, the parents do have standing to pursue injunctive and declaratory\\nrelief, as well as damages, in connection with their claim that the ongoing storage of their\\nchildren’s blood samples violates their substantive due process rights to direct and control the\\nmedical care of their children.\\n\\n Plaintiffs argue that the Fourteenth Amendment protects parents’ rights to direct the\\nmedical care of their children. For purposes of our standing analysis, we assume that Plaintiffs\\nwill be able to prove that the transfer and storage of their children’s blood samples violates the\\nparents’ substantive due process rights. The Supreme Court has held that parents have standing\\nwhen the state interferes with their right to control the upbringing of their children, as when\\nparents’ “impressionable schoolchildren were subjected to unwelcome religious exercises or\\nwere forced to assume special burdens to avoid them.” Valley Forge Christian College v.\\nAmericans United for Separation of Church and State, Inc., 454 U.S. 464, 486 n.22 (1982)\\n(discussing Abington School District v. Schempp, 374 U.S. 203 (1963)); accord Caldwell v.\\nCraighead, 432 F.2d 213, 220 (6th Cir. 1970) (“In challenging the constitutionality of [certain]\\ntypes of religious services, there is sufficient interest to sue if the parties are either students\\nenrolled in the institution where the services are carried on or are parents of the students.”). Just\\nas it represents a harm to parents when the state denies them their right to direct the education\\nand religious upbringing of their children, it represents a harm when the state denies parents the\\nright to direct the medical care of their children. The parents in this case allege that they are\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 14\\n\\n\\nbeing denied their right to direct the medical care of their children by Defendants’ ongoing\\nstorage of the blood samples without parental consent and will be further denied this right if the\\nstate conducts research using the samples or transfers the samples to third parties. These alleged\\nharms afford the parents standing to seek injunctive and declaratory relief, as well as damages, in\\nconnection with the storage of their children’s blood samples.\\n\\n In sum, the claims for which Plaintiffs have standing6 are as follows: 1) a claim for\\ndamages based on the alleged violation of the children’s substantive due process rights when\\ntheir blood samples were collected and screened for diseases; 2) a claim for damages based on\\nthe alleged violation of the parents’ substantive due process rights when their children’s blood\\nsamples were collected and screened for diseases; 3) a claim for damages, as well as injunctive\\nand declaratory relief, based on the alleged violation of the children’s substantive due process\\nrights by Defendants’ retention and ongoing storage of their blood samples; 4) a claim for\\ndamages, as well as injunctive and declaratory relief, based on the alleged violation of the\\nparents’ substantive due process rights by Defendants’ retention and ongoing storage of their\\nchildren’s blood samples; 5) a claim for damages based on the alleged violation of the children’s\\nFourth Amendment rights when their blood samples were collected and screened for diseases;\\nand 6) a claim for damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the children’s Fourth Amendment rights by Defendants’ retention and ongoing\\nstorage of their blood samples.\\n\\n We will first address Plaintiffs’ four substantive due process claims, and then address\\ntheir two Fourth Amendment claims.\\n\\n\\n\\n\\n 6With respect to the other two standing requirements, there is no question that Plaintiffs’ alleged harms\\nhave “‘a causal connection [with] the conduct complained of’ [and are] ‘fairly . . . trace[able] to the challenged\\naction of [Defendants], and not . . . th[e] result [of] the independent action of some third party not before the court.’”\\nShearson, 725 F.3d at 592 (quoting Lujan, 504 U.S. at 560–61). The causation requirement is therefore met with\\nrespect to these claims. And because it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be\\n‘redressed by a favorable decision,’” the redressability requirement is met as well. Id. (quoting Lujan, 504 U.S. at\\n561).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 15\\n\\n\\nII. Substantive Due Process Claims\\n\\n Standard of Review\\n\\n “We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss for\\nfailure to state a claim.” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012). To\\nsurvive a motion to dismiss, a complaint “does not need detailed factual allegations,” but should\\nidentify “more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555\\n(2007). A complaint also “must contain sufficient factual matter, accepted as true, to ‘state a\\nclaim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting\\nTwombly, 550 U.S. at 570).\\n\\n Analysis\\n\\n Plaintiffs’ substantive due process claims involve Defendants’ alleged violations of both\\nthe children’s right to direct their own medical care and the parents’ rights to direct the medical\\ncare of their children. Plaintiffs claim that the parents’ and children’s rights were violated when\\nthe children’s blood was drawn and screened for diseases, as well as by Defendants’ retention\\nand ongoing storage of the children’s blood samples and the threat of future use of those\\nsamples. This section will address each of these issues.\\n\\n 1. Alleged Violation of the Children’s Substantive Due Process Rights When Blood\\n Samples Were Collected\\n\\n Plaintiffs seek damages based on the alleged violation of the children’s substantive due\\nprocess rights when their blood samples were collected and screened for diseases. Defendants\\nclaim that damages are precluded by state sovereign immunity and qualified immunity.\\n\\n State sovereign immunity generally bars damages actions against states from proceeding\\nin federal court. Maben v. Thelen, 887 F.3d 252, 270 (6th Cir. 2018).7 This immunity also\\ngenerally applies to “state agents and instrumentalities,” Regents of Univ. of Calif. v. Doe,\\n\\n\\n 7State sovereign immunity is sometimes called “Eleventh Amendment” immunity because that amendment\\nreaffirmed the doctrine after it was thrown into doubt; however, this immunity emanates from our overall\\nconstitutional framework rather than existing in any one amendment. See Pennhurst State School & Hosp. v.\\nHalderman, 465 U.S. 89, 97–98 (1984).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 16\\n\\n\\n519 U.S. 425, 429 (1997), including state officials sued in their official capacities. Maben,\\n887 F.3d at 270. For this reason, Plaintiffs cannot seek damages from MDHHS, the Neonatal\\nBiobank,8 or any individual Defendant sued in his or her official capacity.\\n\\n “The Eleventh Amendment, however, does not bar suits for damages against officers in\\ntheir personal capacity under § 1983.” Maben, 887 F.3d at 270 (citing Hafer v. Melo, 502 U.S.\\n21, 25–27 (1991)). Thus, Plaintiffs’ claims seeking damages against Nick Lyon, Dr. Sandip\\nShah, Dr. Sarah Lyon-Callo, Mary Kleyn, and Dr. Antonio Yancey are not barred by Eleventh\\nAmendment immunity.\\n\\n These claims were nevertheless properly dismissed because the individual defendants are\\nentitled to qualified immunity. To overcome qualified immunity, Plaintiffs must show that “the\\nright at issue was clearly established at the time of [the] defendant’s alleged misconduct.”\\nBarker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011). “To be clearly established, a right must\\nbe sufficiently clear ‘that every reasonable official would [have understood] that what he is doing\\nviolates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft v. al-Kidd,\\n563 U.S. 731, 741 (2011)). Plaintiffs have failed to make the required showing to overcome\\nqualified immunity.\\n\\n Plaintiffs concede that “[t]his is a case of first impression” involving “a novel\\ncircumstance alleged to be occurring in violation of the Fourth and Fourteenth Amendments.”\\n(Appellants’ Br. ix.) Plaintiffs are correct that the Supreme Court has held that “a competent\\n\\n\\n 8Plaintiffs’ Complaint assert that Michigan Neonatal Biobank and its Director, Dr. Antonio Yancey, are\\nboth state actors suable under § 1983. The Neonatal Biobank defines itself as a “nonprofit corporation that receives\\nall or nearly all of its funding from the State of Michigan,” and the state relies on the Neonatal Biobank to\\n“indefinitely store the Infants’ blood” after the blood samples are screened for diseases. (Appellee Biobank Br. 3,\\n4.) The Neonatal Biobank’s brief never directly addresses whether it is an arm of the state and thus seems to\\nconcede that it is. At oral argument, counsel for the Neonatal Biobank explained that the Neonatal Biobank was\\ncreated by the state but stated that he did not believe any state employees or officers were on its board of directors.\\n(Mar. 13, 2018, Oral Arg. 28:52–29:35.) We have held that an entity created by the state law “to carry out state\\nfunctions” is sufficiently affiliated with the state as to constitute an arm of the state. Estate of Ritter v. Univ. of\\nMichigan, 851 F.2d 846, 850 (6th Cir. 1988). The Supreme Court has noted that “the vulnerability of the State’s\\npurse [is] the most salient factor in Eleventh Amendment determinations.” Hess v. Port Auth. Trans-Hudson Corp.,\\n513 U.S. 30, 48 (1994). Michigan created the Neonatal Biobank to carry out the state function of storing the\\nInfants’ blood, which the state funds the Neonatal Biobank to do. The fact that the state funds the Neonatal Biobank\\nsuggests that the state’s purse would be vulnerable if Plaintiffs were to recover against the Neonatal Biobank. Based\\non these considerations, the Neonatal Biobank is an arm of the state.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 17\\n\\n\\nperson has a constitutionally protected liberty interest in refusing unwanted medical treatment.”\\nCruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 277 (1990). However, the Court has\\nnever so held for incompetent persons or minors, and it has in fact strongly suggested that this\\nright does not extend to minor children. Id. at 279 (noting that in a prior decision the Court\\n“certainly did not intimate that . . . a minor child, after commitment, would have a liberty interest\\nin refusing treatment”). Plaintiffs have therefore failed to show that “the right at issue was\\nclearly established at the time of [Defendants’] alleged misconduct.” Barker, 649 F.3d at 433.\\n\\n Thus, each of Plaintiffs’ damages claims asserting a violation of the children’s\\nsubstantive due process rights when their blood was collected and screened for diseases is barred\\nby either state sovereign immunity or qualified immunity. Because these claims cannot be\\nmaintained against Defendants in light of the relevant immunities, we may affirm the district\\ncourt without deciding whether the children’s substantive due process rights were actually\\nviolated. See Pearson v. Callahan, 555 U.S. 223, 237 (2009). Nevertheless, under Pearson v.\\nCallahan, we may still “exercise [our] sound discretion” to decide whether a constitutional\\nviolation occurred. 555 U.S. at 236.9\\n\\n In this instance, we will exercise our discretion to decide the underlying constitutional\\nquestion because this is an issue for which “a discussion of why the relevant facts do not violate\\nclearly established law make[s] it apparent that in fact the relevant facts do not make out a\\nconstitutional violation at all.” Id. The qualified immunity discussion above makes it apparent\\nthat the children’s substantive due process rights were not violated. As mentioned, the Supreme\\nCourt has strongly suggested that minor children lack a liberty interest in directing their own\\nmedical care. Cruzan, 497 U.S. at 279; see also Schall v. Martin, 467 U.S. 253, 265 (1984)\\n(“Children, by definition, are not assumed to have the capacity to take care of themselves.”).\\n\\n 9Defendants argue that we should not address Plaintiffs’ substantive due process claims because Plaintiffs\\nalso raise Fourth Amendment claims arising out of the drawing of the children’s blood. Defendants cite the\\nSupreme Court’s statement that “[w]here a particular Amendment provides an explicit textual source of\\nconstitutional protection against a particular sort of government behavior, that Amendment, not the more\\ngeneralized notion of substantive due process, must be the guide for analyzing these claims.” Cty. of Sacramento v.\\nLewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)). However, Lewis is\\ndistinguishable because it concerned the vaguer “shocks the conscience” test of substantive due process, rather than\\na claim relating to a specific fundamental right like the right to direct one’s medical care. Because the substantive\\ndue process rights that Plaintiffs assert are analytically distinct from their Fourth Amendment claims, we may\\naddress both types of claims separately.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 18\\n\\n\\nInstead, children must instead rely on parents or legal guardians to do so until they reach the age\\nof competency. See Parham v. J. R., 442 U.S. 584, 602 (1979) (“The law’s concept of the family\\nrests on a presumption that parents possess what a child lacks in maturity, experience, and\\ncapacity for judgment required for making life’s difficult decisions.”); Schall, 467 U.S. at 265\\n(recognizing that children “are assumed to be subject to the control of their parents.”).\\nAccordingly, any substantive due process rights related to directing the medical care of children\\ndevolve upon the parents or legal guardians of the children, rather than the children themselves.\\nThe children’s substantive due process rights were therefore not violated when Defendants drew\\ntheir blood and screened it for diseases, providing another basis upon which to affirm the district\\ncourt’s dismissal of these claims.\\n\\n 2. Alleged Violation of the Parents’ Substantive Due Process Rights When Blood\\n Samples Were Collected\\n\\n Plaintiffs seek damages based on Defendants’ alleged violation of the parents’\\nsubstantive due process rights when their children’s blood samples were collected and screened\\nfor diseases. As with the previous claim, this claim is for damages and thus can only be brought\\nagainst the state officers in their individual capacities due to state sovereign immunity. And as\\nwith the previous claim, the state officers are entitled to qualified immunity.\\n\\n To overcome qualified immunity, Plaintiffs must show that “the right at issue was clearly\\nestablished at the time of the defendant’s alleged misconduct.” Barker, 649 F.3d at 433.\\nPlaintiffs acknowledge that “there is little case law on the same factual circumstances of this\\ncase.” (Appellants’ Br. 25.) Plaintiffs further concede that “Supreme Court precedent . . . has\\nnot delineated the parameters of a ‘parent’s right to parent’ in a way that can be neatly applied to\\nnew sets of facts.” (Appellants’ Br. 24 (quoting R. 50, Order, ID# 831 (citing Doe v. Heck, 327\\nF.3d 492, 519 (7th Cir. 2003))).) Nevertheless, Plaintiffs argue that “nonconsensual medical\\ntreatment and testing violating the Fourteenth Amendment is not a completely first impression\\nmatter in this country.” (Appellants’ Br. 20.)\\n\\n It is true that the Supreme Court has recognized parents’ substantive due process right to\\n“direct the upbringing and education of children under their control.” Pierce v. Soc’y of Sisters,\\n268 U.S. 510, 534–35 (1925). However, this precedent does not address the issue of parents’\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 19\\n\\n\\nright to control their children’s medical care and therefore does not demonstrate that Defendants\\nviolated Plaintiffs’ clearly established rights. See Reichle, 566 U.S. at 664. The case law in this\\narea is sparse; Plaintiffs cite only a Tenth Circuit case and a district court case touching on the\\nissue of parents’ right to control their children’s medical care. Dubbs v. Head Start, Inc.,\\n336 F.3d 1194 (10th Cir. 2003); Beleno v. Lakey, 306 F. Supp. 3d 930 (W.D. Tex. 2009). In\\nDubbs, the Tenth Circuit held that the district court had erroneously applied the “shocks the\\nconscience” standard to a claim similar to the instant claim, but “decline[d] to resolve the\\ndifficult questions regarding the standard to be applied.” 336 F.3d at 1203–04. Plaintiffs are\\ntherefore incorrect that even one court of appeals case has squarely addressed the question before\\nus. And even if it were, “[t]his court has stated that out-of-circuit precedent clearly establishes\\nrights only in ‘extraordinary case[s]’” involving rights that are “clearly foreshadowed by\\napplicable direct authority,” which is not true of the rights at issue in this case. Hearring v.\\nSliwowski, 712 F.3d 275, 282 (6th Cir. 2013) (quoting Ohio Civil Serv. Emps. Ass’n v. Seiter,\\n858 F.2d 1171, 1177 (6th Cir. 1988)).\\n\\n State sovereign immunity and qualified immunity therefore bar all of Plaintiffs’ claims\\nalleging that the parents’ substantive due process rights were violated when Defendants drew\\ntheir children’s blood and screened it for diseases, and we decline to exercise our discretion to\\nreach the merits of this issue. See Pearson, 555 U.S. at 236. In contrast with the issue discussed\\nin the previous section, we cannot easily say, based on the allegations in the Complaint, that the\\ndrawing of the children’s blood “do[es] not make out a constitutional violation” of the parents’\\nsubstantive due process right to direct their children’s medical care. Id. The Supreme Court has\\nsuggested that we might decline to exercise our jurisdiction in situations where “it is plain that a\\nconstitutional right is not clearly established but far from obvious whether in fact there is such a\\nright.” Pearson, 555 U.S. at 237. Because this issue presents such a situation, we decline to rule\\non whether the initial drawing of blood violated the parents’ substantive due process rights, and\\nwe affirm the district court’s judgment solely on qualified immunity and state sovereign\\nimmunity grounds.10\\n\\n\\n\\n 10We note as well that although these Plaintiffs lack standing to pursue prospective relief on their claims\\narising out of the initial drawing of blood, future plaintiffs may be able to demonstrate a risk of future harm that is\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 20\\n\\n\\n 3. Alleged Violation of the Children’s Substantive Due Process Rights Based on\\n Ongoing Storage of Blood Samples\\n\\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the children’s substantive due process right to direct their own medical care by\\nDefendants’ retention of the children’s blood samples after the samples have been screened for\\ndiseases, by Defendants’ transfer of the samples to the Neonatal Biobank, and by Defendants’\\nongoing storage of the samples for further use by the state. As with the previous claims, state\\nsovereign immunity and qualified immunity prevent Plaintiffs from obtaining damages against\\nDefendants in connection with this claim.\\n\\n Unlike with the previous claims, however, Plaintiffs have standing to seek prospective\\nrelief for the alleged ongoing violation of the children’s rights. State sovereign immunity\\nprevents Plaintiffs from seeking such relief against MDHHS and the Neonatal Biobank because\\nthese entities are state instrumentalities that are considered “the state and its departments.”\\nThiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir.\\n1993) (citing Pennhurst, 465 U.S. at 100–01). But state sovereign immunity is subject to a few\\nexceptions, one of which is the doctrine first announced in Ex parte Young, 209 U.S. 123 (1908).\\n“[T]he Supreme Court announced an exception to Eleventh Amendment sovereign immunity in\\nEx parte Young for claims [under federal law] for injunctive relief against individual state\\nofficials in their official capacities.” Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th\\nCir. 2013). We have further explained:\\n\\n Under the Ex parte Young exception, a federal court can issue prospective\\n injunctive and declaratory relief compelling a state official to comply with federal\\n law, Will [v. Mich. Dept. of State Police, 491 U.S. 58,] 71 & n. 10 [(1989)],\\n regardless of whether compliance might have an ancillary effect on the state\\n treasury, Edelman [v. Jordan, 415 U.S. 651,] 667–68 [(1974)]; Doe v. Wigginton,\\n\\n“concrete, particularized, and actual or imminent” enough to give them standing to pursue such relief. Shearson,\\n725 F.3d at 592 (quoting Clapper, 568 U.S. at 409). Such plaintiffs would only need to demonstrate a “substantial\\nrisk” that the harm will occur. Clapper, 568 U.S. at 414 n.5 (quoting Monsanto Co., 561 U.S. at 153). For example,\\nfuture plaintiffs might consist of individuals who are pregnant or seeking to become pregnant. If these potential\\nplaintiffs can demonstrate more than mere “‘some day’ intentions” to bear children, they will likely have standing to\\npursue prospective relief relating to the risk that their future children’s blood will be drawn at birth. Lujan. 504\\nU.S. at 564. The possibility of such a case, which would require us to address the merits of this issue, further\\nsupports our decision not to exercise our discretion to decide the issue in this case, where such decision would seem\\nto be “an essentially academic exercise.” Pearson, 555 U.S. at 237.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 21\\n\\n\\n 21 F.3d 733, 737 (6th Cir. 1994). “It is beyond dispute that federal courts have\\n jurisdiction over suits to enjoin state officials from interfering with federal rights.”\\n Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d\\n 490 (1983) (citing Ex parte Young, 209 U.S. at 160–62, 28 S.Ct. 441). The Ex\\n parte Young exception does not, however, extend to any retroactive relief. Quern\\n v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).\\n\\nS & M Brands, Inc. v. Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008).11\\n\\n In this case, the Ex parte Young exception applies only to the individual state officers—\\nNick Lyon, Dr. Sandip Shah, Dr. Sarah Lyon-Callo, Mary Kleyn, and Dr. Antonio Yancey—and\\nonly to the extent that Plaintiffs’ claims are brought against these individuals in their official\\ncapacities. The Ex parte Young exception does not permit Plaintiffs to seek damages or any\\nother retroactive relief against these Defendants, but it does permit Plaintiffs to seek prospective\\ninjunctive and declaratory relief against them. In sum, Plaintiffs’ claims fit within the Ex parte\\nYoung exception to the extent that they relate to the ongoing storage of the children’s blood\\n(which Plaintiffs allege is a “continuing violation of” the children’s substantive due process\\nrights) and they seek prospective relief aimed at stopping this alleged violation.\\n\\n Thus, state sovereign immunity does not bar Plaintiffs’ claims for prospective relief\\nagainst the individual Defendants in their official capacities arising out of the ongoing storage of\\nthe children’s blood. Nor are Plaintiffs’ claims seeking prospective relief against these\\nDefendants barred by qualified immunity, as “qualified immunity only immunizes defendants\\nfrom monetary damages”—not injunctive or declaratory relief. Williams v. Com. of Ky., 24 F.3d\\n1526, 1541 (6th Cir. 1994). We can therefore proceed to the merits of Plaintiffs’ claim that\\nDefendants’ retention and ongoing storage of their blood samples violates the children’s\\nsubstantive due process rights.\\n\\n\\n\\n 11Another reason that claims against the state and its agencies cannot be maintained under § 1983 is that\\nthese entities are not suable “persons” for purposes of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S.\\n58, 64–66 (1989). By contrast, “a state official in his or her official capacity, when sued for injunctive relief, [is] a\\nperson under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the\\nState.’” Id. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1989) and citing Ex parte Young, 209\\nU.S. at 159–60). The Supreme Court has explained that “[t]his distinction is ‘commonplace in sovereign immunity\\ndoctrine,’ L. Tribe, American Constitutional Law § 3–27, p. 190, n. 3 (2d ed. 1988), and would not have been\\nforeign to the 19th-century Congress that enacted § 1983.” Id.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 22\\n\\n\\n This claim fails because the children’s substantive due process rights were not violated.\\nAs discussed above, children cannot control their own medical care and must instead rely on\\nparents or legal guardians to do so until they reach the age of competency. See Cruzan, 497 U.S.\\nat 279; Schall, 467 U.S. at 265; Parham, 442 U.S. at 602. Therefore, any substantive due\\nprocess rights related to their care devolve upon the parents or legal guardians rather than the\\nchildren themselves. For this reason, we affirm the district court’s dismissal of the children’s\\nsubstantive due process claims. The rights of the parents or guardians are discussed in the\\nfollowing section.\\n\\n 4. Alleged Violation of the Parent’s Substantive Due Process Rights Based on\\n Ongoing Storage of Blood Samples\\n\\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the parent’s substantive due process rights to direct the medical care of their children\\nby Defendants’ retention, transfer, and ongoing storage of the children’s blood samples.\\n\\n For the reasons already discussed, state sovereign immunity and qualified immunity\\nprevent Plaintiffs from obtaining damages against Defendants. Plaintiffs cannot seek prospective\\nrelief against MDHHS or the Neonatal Biobank, but they can seek such relief against the\\nindividual Defendants in their official capacities. See Thiokol Corp., 987 F.2d at 381. We\\ntherefore proceed to the merits of Plaintiffs’ claim that Defendants’ ongoing storage of their\\nchildren’s blood samples violates the parents’ substantive due process rights.\\n\\n Parents possess a fundamental right to make decisions concerning the medical care of\\ntheir children. It is well established that a parent has a substantive due process right “to direct\\nthe education and upbringing of [his] children.” Washington v. Glucksberg, 521 U.S. 702, 720\\n(1997) (citing Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510\\n(1925)). Otherwise stated, a parent has a “fundamental right to make decisions concerning the\\ncare, custody, and control of her” children, Troxel v. Granville, 530 U.S. 57, 72 (2000), which\\nwould seem to naturally include the right to direct their children’s medical care. See Parham,\\n442 U.S. at 604 (“[Parents] retain plenary authority to seek [at least some forms of medical] care\\nfor their children [including institutionalization], subject to a physician’s independent\\nexamination and medical judgment.”); PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197 (10th\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 23\\n\\n\\nCir. 2010) (recognizing that although “[t]he Supreme Court has . . . never specifically defined the\\nscope of a parent’s right to direct her child’s medical care,” “precedent reasonably suggests that\\nthe Due Process Clause provides some level of protection for parents’ decisions regarding their\\nchildren’s medical care”).\\n\\n The right of parents to direct the medical care of their children has further support in the\\ncase law as well. In Cruzan, the Supreme Court held that “a competent person has a\\nconstitutionally protected liberty interest in refusing unwanted medical treatment.” 497 U.S. at\\n278. As discussed, children do not possess the right to make medical decisions for themselves\\nbecause “[c]hildren, by definition, are not assumed to have the capacity to take care of\\nthemselves.” Schall v. Martin, 467 U.S. 253, 265 (1984). However, this does not imply that no\\none has a fundamental right to direct the medical care of children. Rather, “[t]he law’s concept\\nof the family rests on a presumption that parents possess what a child lacks in maturity,\\nexperience, and capacity for judgment required for making life’s difficult decisions.” Parham,\\n442 U.S. at 602. Children “are assumed to be subject to the control of their parents.” Schall, 467\\nU.S. at 265. Thus, it is logically the parents who possess a fundamental right to direct the\\nmedical care of their children. For these reasons, parents’ substantive due process right “to make\\ndecisions concerning the care, custody, and control” of their children includes the right to direct\\ntheir children’s medical care. 530 U.S. at 72.\\n\\n The existence of a fundamental right means that “[g]overnment actions that burden the\\nexercise of [the right] are subject to strict scrutiny, and will be upheld only when they are\\nnarrowly tailored to a compelling governmental interest.” Seal v. Morgan, 229 F.3d 567, 574–75\\n(6th Cir. 2000). This does not mean that parents’ control over their children is without limit. See\\nSchall, 467 U.S. at 265 (“[I]f parental control falters, the State must play its part as parens patriae\\n[and in such circumstances] the juvenile’s liberty interest may . . . be subordinated to the State’s\\n‘parens patriae interest in preserving and promoting the welfare of the child.’” (quoting Santosky\\nv. Kramer, 455 U.S. 745, 766 (1982))). Indeed, limitations on parents’ control over their\\nchildren are particularly salient in the context of medical treatment. See, e.g., Jacobson v.\\nMassachusetts, 197 U.S. 11, 38 (1905) (holding that a compulsory vaccination law with only\\nmedical exemptions did not violate any federal constitutional right); Nikolao v. Lyon, 875 F.3d\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 24\\n\\n\\n310, 316 (6th Cir. 2017) (holding that a compulsory vaccination law with some religious\\nexemptions did not violate the First Amendment).12 The state’s interest in preserving the welfare\\nof children is at its zenith when the life of the child is at stake, and in such circumstances the\\nstate in its role of parens patriae may subordinate the interest of the child’s parents to its own\\ninterest in keeping the child alive. See Schall, 467 U.S. at 265. A program to screen children for\\nlife-threatening diseases at birth may be an example of a state’s proper exercise of its parens-\\npatriae role, provided that the state operates the program for purely benevolent motives. See\\nJacobson, 197 U.S. at 38; Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (“[T]he state has a\\nwide range of power for limiting parental freedom and authority in things affecting the child’s\\nwelfare . . . .”). It may well be that the NSP would survive strict scrutiny to the extent that it\\ninvolves drawing the children’s blood and screening for life-threatening diseases. However, as\\nstated, we decline to rule on this aspect of the NSP because Plaintiffs’ substantive due process\\nclaims relating to the initial drawing of blood and screening for diseases are barred by state\\nsovereign immunity and qualified immunity.\\n\\n The only remaining question is whether Defendants’ subsequent retention, transfer, and\\nstorage of the samples violate the parents’ fundamental rights. Plaintiffs allege facts sufficient to\\nstate plausible claims for relief on this issue, and we therefore reverse the district court’s\\ndismissal of these claims.\\n\\n Plaintiffs allege that after screening children’s blood samples for diseases, Defendants\\nretain the samples, transfer the samples to the Neonatal Biobank, and store the samples\\nindefinitely for further use by the state or third parties. Plaintiffs allege that these actions are\\n\\n\\n\\n\\n 12Plaintiffs argue that these cases only stand for the proposition that “[l]aws that are intended to prevent a\\nperson from harming others by disease contagion can be justified as an exercise of police power” and that the cases\\ndo not govern in this instance because none of the diseases screened for in the program at issue are contagious.\\n(Appellants’ Br. 28–29.) This argument ignores much precedent to the effect that the state may protect children\\nfrom danger created by their parents. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1994) (“Acting to guard\\nthe general interest in youth’s well being, the state as parens patriae may restrict the parent’s control . . . in many []\\nways.”). Plaintiffs’ argument is essentially that a parent may not place other parents’ children in danger via her\\ndecisions as to her child’s medical care, see Jacobson, 197 U.S. at 38, but that a parent can put her own child in\\ndanger via such decisions. Such a holding would be deeply unsettling; fortunately, neither the Constitution nor any\\ncases interpreting the Constitution persuade us that it is correct.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 25\\n\\n\\nundertaken without informed parental consent.13 Because this case is before us on appeal from a\\nmotion to dismiss, we must take Plaintiffs’ factual allegations as true. Iqbal, 556 U.S. at 678.\\nTaking these allegations as true, Defendants’ actions constitute a denial of the parents’\\nfundamental right to direct the medical care of their children, and their actions must survive strict\\nscrutiny.\\n\\n On remand, Defendants will be free to produce evidence demonstrating that the parents\\nconsented to some or all of Defendants’ actions vis-à-vis the children’s blood samples. To the\\nextent that the parents provided informed consent to Defendants’ actions, no fundamental liberty\\ninterest would have been impinged because the parents would not have been denied the right to\\ncontrol their children’s medical care, although it may be that merely “present[ing] [parents] with\\nan option to opt out of having their child’s blood used for research” as the district court seemed\\nto believe occurred here, (R. 50, Order Granting Motions to Dismiss, Page ID# 838), is not\\nsufficient if the default is for the state to use the samples for research. We note that consent to\\nallow the state to conduct research on the children’s blood samples does not necessarily imply\\nconsent to allow the state to sell the blood samples to third parties. Many questions about the\\nnature and scope of parental consent remain, and the case should proceed to discovery so that the\\nparties may produce evidence relating to these questions.\\n\\n On remand, the parties will also be able to produce evidence relating to whether\\nDefendants had a compelling interest in retaining, transferring, and storing the children’s blood\\nsamples after screening them for diseases, and whether Defendants’ means for achieving their\\ninterest were narrowly tailored. Based on Plaintiffs’ allegations, it seems unlikely that\\nDefendants will be able to demonstrate a compelling interest, as the health of the child is no\\n\\n\\n 13The Complaint alleges that Plaintiffs did not give informed consent at all. Plaintiffs also allege that any\\nconsent the parents purported to give was not general enough to permit all of Defendants’ actions with respect to the\\nsamples. The district court seemed to suggest that the parents’ claims failed because they consented to the use of\\ntheir children’s samples for research. (R. 50, Order Granting Motions to Dismiss, Page ID# 838.) To be clear,\\nPlaintiffs do not concede that they consented to the state’s retention, transfer, storage, or use of their children’s\\nblood samples. To the extent the district court held that Plaintiffs made such a concession, it erred in refusing to\\n“accept[] [Plaintiffs’ factual allegations] as true,” as the posture of the case requires. Iqbal, 556 U.S. at 678. We\\nemphasize that a fundamental right is at stake; it will be essential on remand to determine the precise nature and\\nscope of any parental consent that occurred. Based on the facts alleged, Plaintiffs did not consent to all of\\nDefendants’ actions with respect to the samples.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 26\\n\\n\\nlonger at stake after the samples have been tested for life-threatening diseases.14 Plaintiffs allege\\nthat Defendants conduct research on children’s stored blood samples and seek to derive profit\\nfrom the children’s samples by selling them to third parties. On remand, Defendants may deny\\nthat they have a present or future commercial interest in the blood samples (which, up to this\\npoint in the litigation, they have not done) and may present evidence demonstrating other\\npurposes for retaining, transferring, and storing the samples.\\n\\n We therefore reverse the district court’s dismissal of these claims and remand for further\\nproceedings consistent with this opinion.\\n\\n Summary\\n\\n Because MDHHS, the Neonatal Biobank, and every individual Defendant sued in his or\\nher official capacity are entitled to state sovereign immunity, dismissal with respect to Plaintiffs’\\nsubstantive due process claims seeking damages from them was proper. The district court also\\nproperly dismissed Plaintiffs’ claims seeking damages against every individual Defendant in his\\nor her individual capacity because they were entitled to qualified immunity. The district court\\nproperly dismissed Plaintiffs’ claims relating to the substantive due process rights of the children\\nbecause these claims fail on their merits. However, the district court erred in dismissing\\nPlaintiffs’ claims seeking prospective relief against the individual Defendants in their official\\ncapacities relating to their alleged violation of the parents’ substantive due process rights in\\nconnection with Defendants’ retention and ongoing storage of the blood samples, because these\\nclaims are not subject to qualified immunity and fall within the Ex parte Young exception to state\\nsovereign immunity. The parents have a fundamental right to direct the medical care of their\\nchildren, and their claims may go forward so that the parties can present evidence related to\\nDefendants’ actions and the legal implications of those actions. Specifically, the questions on\\nremand will be whether the evidence demonstrates that Defendants’ actions interfered with the\\n\\n 14Plaintiffs concede that the state may have policies requiring parents to be notified but allege that these\\npolicies are not always followed. The parties will have the opportunity on remand to introduce evidence as to these\\npolicies and the extent to which Defendants followed them, and we wish to emphasize the importance of notifying\\nparents as to any medical procedures that may have been conducted on their children and the importance of\\nuniformity and consistency in how parents are notified. See Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003)\\n(holding the state denied parents’ substantive due process rights by conducting a custodial interview of a child\\n“without notifying or obtaining the consent of his parents”).\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 27\\n\\n\\nparents’ right to direct their children’s medical care; and, to the extent they did interfere with the\\nparents’ fundamental rights, whether those actions survive strict scrutiny.\\n\\n Thus, we affirm the district court’s dismissal of all of Plaintiffs’ substantive due process\\nclaims except their claims against the individual Defendants in their official capacities to the\\nextent that those claims seek injunctive and declaratory relief in connection with the alleged\\nviolation of the parent’s substantive due process right by Defendants’ retention and ongoing\\nstorage of the blood samples. With respect to those latter claims, we reverse and remand the\\ncase for further proceedings consistent with this opinion.\\n\\nIII. Fourth Amendment Claims\\n\\n Standard of Review\\n\\n “We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss for\\nfailure to state a claim.” Casias, 695 F.3d at 43. To survive a motion to dismiss, a complaint\\n“does not need detailed factual allegations,” but should identify “more than labels and\\nconclusions.” Twombly, 550 U.S. at 555 (citations omitted). A complaint also “must contain\\nsufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”\\nIqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).\\n\\n Analysis\\n\\n As discussed above, Plaintiffs have standing to bring only two categories of Fourth\\nAmendment claims: claims for damages resulting from Defendants’ alleged violation of the\\nchildren’s Fourth Amendment rights when their blood samples were collected and screened for\\ndiseases; and claims for damages, as well as injunctive and declaratory relief, resulting from the\\nalleged violation of the children’s Fourth Amendment rights by Defendants’ retention, transfer,\\nand storage of the blood samples. We will address these claims in turn.\\n\\n 1. Alleged Violation of the Children’s Fourth Amendment Rights When Blood\\n Samples Were Collected\\n\\n Plaintiffs seek damages based on the alleged violation of the children’s Fourth\\nAmendment rights when their blood samples were collected and screened for diseases, arguing\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 28\\n\\n\\nthat Defendants’ actions constituted a search for which a warrant was required. These damages\\nclaims suffer the same defects as all of the other damages claims already discussed. Namely,\\nstate sovereign immunity bars damages actions against all Defendants except the individual\\nDefendants sued in their individual capacities, and qualified immunity bars damages actions\\nagainst any of the individual Defendants sued in their individual capacities.\\n\\n With respect to qualified immunity, Plaintiffs concede that “[t]his is a case of first\\nimpression” involving “a novel circumstance alleged to be occurring in violation of the Fourth\\nand Fourteenth Amendments.” (Appellants’ Br. ix.) Even assuming that the children’s Fourth\\nAmendment rights were violated by the initial drawing of their blood, these rights were not\\nclearly established. On their face, these claims might appear to present a closer call than the\\nprevious claims, in that the Supreme Court has held that drawing blood does constitute a Fourth\\nAmendment violation in some circumstances. Schmerber v. California, 384 U.S. 757, 767–68\\n(1966) (holding that when a police officer directs that a suspect’s blood be drawn in order to\\nproduce evidence in connection with a criminal investigation, the drawing of blood “plainly\\nconstitute[s] [a] search[] of [a] ‘person[],’” and is therefore subject to “respected relevant Fourth\\nAmendment standards of reasonableness”). However, this does not indicate a clearly established\\nright, as this case is far from a straightforward application of Schmerber. After Schmerber, it is\\ntrue that any reasonable medical professional knows or should know that such professionals\\ncannot draw blood for law enforcement purposes without a medical reason or the patient’s\\nconsent, unless they obtain a search warrant. But Defendants claim that their motivation for\\ndrawing the children’s blood—or at least part of their motivation—is to provide the children with\\nmedical care.\\n\\n Because our case law does not clearly establish in what circumstances the Fourth\\nAmendment bars a medical professional from drawing a child’s blood for medical purposes\\nwithout parental notification or consent—or whether such medical purposes must be the primary\\nor predominant motivation for the drawing of blood—the individual Defendants in this case are\\nentitled to qualified immunity. In Schmerber, the defendant’s blood was drawn at the direction\\nof a police officer seeking evidence that the defendant had driven while intoxicated. 384 U.S. at\\n758–59. By contrast, Plaintiffs have never alleged that the state had an evidence-gathering\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 29\\n\\n\\nmotive for the drawing of blood in this case. We have noted that there remains a substantial\\nquestion as to whether drawing blood for the purpose of screening for diseases constitutes a\\nsearch or seizure for Fourth Amendment purposes. See Hearring v. Sliwowski, 712 F.3d 275,\\n281 (6th Cir. 2013) (“This court has not taken a definitive position on whether the Fourth\\nAmendment’s protection against unreasonable searches applies to the provision of medical\\nservices by government-employed health-care professionals.”). In Hearring, we held that a\\ndefendant nurse was entitled to qualified immunity because “existing precedents did not give\\n[her] fair warning that her medical assessments were subject to the Fourth Amendment’s\\nreasonableness requirement, and accordingly the right at issue was not clearly established.” Id.\\nat 282–83. We did not reach the merits of the plaintiff’s claim in Hearring, nor have we settled\\nthis issue in any decision after Hearring. Id. Thus, Defendants are entitled to qualified\\nimmunity because Plaintiffs have failed to show that “the right at issue was clearly established at\\nthe time of [their] alleged misconduct.” Barker, 649 F.3d at 433.\\n\\n State sovereign immunity and qualified immunity therefore bar all of Plaintiffs’ claims\\nalleging that the children’s Fourth Amendment rights were violated when Defendants drew their\\nblood and screened it for diseases, and we decline to exercise our discretion to decide whether\\nthese actions actually violated the children’s Fourth Amendment rights. See Pearson, 555 U.S.\\nat 236. As our discussion of this issue in Hearring demonstrates, this is a situation where “it is\\nplain that a constitutional right is not clearly established but far from obvious whether in fact\\nthere is such a right.” Pearson, 555 U.S. at 237. We therefore decline to rule on whether the\\ninitial drawing of blood violated the children’s Fourth Amendment rights, and we affirm the\\ndistrict court solely on qualified immunity and state sovereign immunity grounds.15\\n\\n 2. Alleged Violation of the Children’s Fourth Amendment Rights Based on Ongoing\\n Storage of Blood Samples\\n\\n Plaintiffs seek damages, as well as injunctive and declaratory relief, based on the alleged\\nviolation of the children’s Fourth Amendment rights by Defendants’ retention of the blood\\n\\n 15We note again the possibility that future plaintiffs may have standing to seek prospective relief relating to\\nthe risk that their future children’s blood will be drawn at birth. See supra, footnote 10. This possibility further\\nsupports our decision not to exercise our discretion to decide the issue in this case, where such decision would seem\\nto be “an essentially academic exercise.” Pearson, 555 U.S. at 237.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 30\\n\\n\\nsamples after the samples have been screened for diseases, by Defendants’ transfer of the\\nsamples to the Neonatal Biobank, and by Defendants’ ongoing storage of the samples for further\\nuse by the state. Due to state sovereign immunity and qualified immunity, Plaintiffs cannot\\nrecover damages against Defendants. Due to state sovereign immunity, Plaintiffs cannot seek\\ninjunctive or declaratory relief against MDHHS or the Neonatal Biobank. See Thiokol Corp.,\\n987 F.2d at 381. But Plaintiffs can seek such prospective relief against the individual\\nDefendants in their official capacities. See id.\\n\\n We therefore proceed to the merits of Plaintiffs’ claims that Defendants’ ongoing storage\\nof their children’s blood samples violates the children’s Fourth Amendment rights. The district\\ncourt dismissed these ongoing seizure claims for lack of standing. For the reasons discussed\\nabove, this was error. In fact, Plaintiffs have stated plausible claims that the ongoing retention\\nand storage of the children’s blood samples for further use by the state violates the children’s\\nFourth Amendment rights. Accordingly, the district court erred in dismissing these claims, and\\nwe reverse and remand.\\n\\n First, we note that this claim is analytically distinct from the question raised in the\\nprevious section of whether drawing the children’s blood and screening it for diseases violated\\nthe children’s Fourth Amendment rights—a question that we decline to address in this opinion\\nand will not be before the district court on remand. It is not necessary to decide whether the\\ndrawing of blood was an unconstitutional search or seizure in order to decide whether the\\nretention, storage, or use of the blood samples violate the children’s Fourth Amendment rights.\\nThis is because Defendants’ ongoing storage and potential future use of the blood samples might\\nbe unconstitutional regardless of whether Defendants’ completed actions of drawing and\\nscreening the children’s blood for disease were constitutional. If drawing and screening the\\nblood was unconstitutional, it is still possible that the ongoing retention, storage, or use of the\\nsample constitutes a separate, independent violation. See Skinner, 489 U.S. at 616 (noting that\\nafter an unconstitutional blood draw occurs, “[t]he ensuing chemical analysis of the sample to\\nobtain physiological data is a further invasion of the tested employee’s privacy interests”\\n(emphasis added)). And if drawing and screening the blood was constitutional, it may still have\\nbecome an illegal seizure if Plaintiffs suffered a further, unlawful, deprivation of their interests at\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 31\\n\\n\\nsome later point. See, e.g., United States v. Jacobsen, 466 U.S. 109, 124–25 (1984) (holding that\\na legal seizure of a package became illegal when officers conducted a field test on it because the\\ntest “affect[ed] respondents’ possessory interests . . . by destroying a quantity of the powder\\n[thereby] convert[ing] what had been only a temporary deprivation of possessory interests into a\\npermanent one”).\\n\\n It is apparent in the case law that the duration of a seizure affects its constitutionality.\\nFor example, the Supreme Court has long recognized that what begins as a lawful seizure can\\nbecome unlawful if it continues for an unreasonable amount of time. See United States v. Place,\\n462 U.S. 696, 707–09 (1983) (“[T]he brevity of the invasion of the individual’s Fourth\\nAmendment interests is an important factor in determining whether the seizure is\\n[constitutional].”). This Court has similarly recognized that extended seizures pose unique\\nconstitutional problems. See United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005) (“[W]hile\\na Terry stop may be constitutionally permissible initially, it may become an impermissible\\n‘seizure if it occurs over an unreasonable period of time or under unreasonable circumstances.’”\\n(quoting United States v. Orsolini, 300 F.3d 724, 729–30 (6th Cir. 2002)); Farm Labor Org.\\nComm. v. Ohio State Highway Patrol, 308 F.3d 523, 546 (6th Cir. 2002) (holding that an officer\\npossessed reasonable suspicion that “would [have] permit[ted] [him] to detain the [plaintiffs’]\\ngreen cards . . . until the following day,” but that a “four-day detention of the[ir] green cards . . .\\nwas unreasonable in duration”).\\n\\n To evaluate the constitutionality of a seizure’s duration, it is necessary to consider\\nwhether the duration is “reasonably needed to effectuate those purposes [justifying the seizure].”\\nUnited States v. Sharpe, 470 U.S. 675, 685 (1985). It does not seem that the health of the child\\njustifies the state in taking any actions with respect to the blood samples after it has finished\\nscreening the samples for diseases. As discussed, Plaintiffs allege that Defendants conduct\\nresearch on children’s stored blood samples and seek to derive profit from the children’s samples\\nby selling them to third parties. If this is indeed Defendants’ purpose in retaining the children’s\\nblood samples, then their ongoing, indefinite seizure of the samples is unreasonable. For this\\nreason, Plaintiffs have plausibly stated a claim upon which relief can be granted, and the district\\ncourt erred in dismissing their Fourth Amendment claims relating to the ongoing storage and\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 32\\n\\n\\npotential future use of the blood samples. The case should proceed to discovery so that the\\nparties may produce evidence of the state’s purposes for retaining, storing, and using the\\nchildren’s blood samples after they have been screened for diseases.\\n\\n On remand, whether Plaintiffs consented to any aspect of Defendants’ retention, storage,\\nor future use of the blood samples will also affect whether there is an ongoing seizure in\\nviolation of the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)\\n(“It is [] well settled that one of the specifically established exceptions to the requirements of\\nboth a warrant and probable cause is a search that is conducted pursuant to consent.”).\\n\\n Summary\\n\\n Because MDHHS, the Neonatal Biobank, and every individual Defendant sued in his or\\nher official capacity are entitled to state sovereign immunity, dismissal with respect to Plaintiffs’\\nFourth Amendment claims seeking damages from them was proper. The district court also\\nproperly dismissed Plaintiffs’ claims seeking damages against every individual Defendant in his\\nor her individual capacity because they were entitled to qualified immunity. However, the\\ndistrict court erred in dismissing Plaintiffs’ claims seeking prospective relief against the\\nindividual Defendants in their official capacities relating to their alleged violation of the\\nchildren’s Fourth Amendment rights in connection with the ongoing storage, use, or transfer of\\nthe blood samples, because Plaintiffs have standing to bring these claims and they are not subject\\nto qualified immunity or state sovereign immunity. Plaintiffs have stated a plausible claim that\\nDefendants’ actions violated their Fourth Amendment rights.\\n\\n Thus, we affirm the district court’s dismissal of all of Plaintiffs’ Fourth Amendment\\nclaims except their claims against the individual Defendants in their official capacities to the\\nextent that those claims seek injunctive and declaratory relief in connection with Defendants’\\nongoing retention, transfer, and storage of the blood samples. With respect to those latter claims,\\nwe reverse and remand the case for further proceedings consistent with this opinion.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 33\\n\\n\\n CONCLUSION\\n\\n For the reasons set forth above, we AFFIRM IN PART and REVERSE IN PART the\\ndistrict court’s judgment and REMAND for further proceedings consistent with this opinion.\\n\\n No. 18-1896 Kanuszewski, et al. v. Mich. Dep’t of Health & Human Servs., et al. Page 34\\n\\n\\n _________________\\n\\n CONCURRENCE\\n _________________\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2495,"cells":{"id":{"kind":"number","value":4628336,"string":"4,628,336"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Timothy Ivory CARPENTER, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Timothy Carpenter"},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"14-1572"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JANE B. STRANCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0126p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 14-1572\\n v. │\\n │\\n │\\n TIMOTHY IVORY CARPENTER, │\\n Defendant-Appellant. │\\n ┘\\n\\n On Remand from the United States Supreme Court.\\n United States District Court for the Eastern District of Michigan at Detroit.\\n No. 2:12-cr-20218-4—Sean F. Cox, District Judge.\\n\\n Decided and Filed: June 11, 2019\\n\\n Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.\\n _________________\\n\\n OPINION\\n _________________\\n\\n JANE B. STRANCH, Circuit Judge. This case returns on remand from the Supreme\\nCourt. In our prior opinion, the majority held that the Government’s warrantless collection of\\nTimothy Ivory Carpenter’s cell-site location information (CSLI) did not violate the Fourth\\nAmendment. The Supreme Court disagreed. The unconstitutionality of the Government’s\\nsearch was not clear until after the Supreme Court reversed our decision, which leads us to the\\nquestion of whether the FBI agents who obtained Carpenter’s CSLI acted in good faith. Because\\nthese agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the\\njudgment of the district court.\\n\\f No. 14-1572 United States v. Carpenter Page 2\\n\\n\\n I. BACKGROUND\\n\\n A. CSLI and the SCA\\n\\n We begin with the basics of CSLI and the related legal framework. CSLI refers to the\\ntime-stamped location records generated each time a wireless device communicates with a\\ncarrier’s network by connecting to the nearest antenna, known as a “cell site.” Carpenter v.\\nUnited States (Carpenter II), 138 S. Ct. 2206, 2211 (2018). As cell phone usage has become\\nubiquitous, cell sites have proliferated. Id. Each new cell site, in turn, enhances the precision of\\ncell phone owners’ CSLI. Even in the time elapsed between Carpenter’s trial and the Supreme\\nCourt’s decision in Carpenter II, CSLI had “rapidly approach[ed] GPS-level precision.” Id. at\\n2219; see also id. (“[W]ith new technology measuring the time and angle of signals hitting their\\ntowers, wireless carriers already have the capability to pinpoint a phone’s location within 50\\nmeters.”).\\n\\n The imminent launch of fifth-generation wireless technology, known as 5G, promises to\\nmultiply the number of cell sites in this country. Wireless networks once designed to carry cell\\nphone traffic will soon support an unprecedented number of devices connected across industries,\\nincluding autonomous vehicles, smart homes, wearable devices, industrial machinery, and\\ndrones. See Jill C. Gallagher & Michael E. DeVine, Cong. Research Serv., R45485, Fifth-\\nGeneration (5G) Telecommunications Technologies: Issues for Congress 2–6 (2019). To handle\\nall the wireless data transmitted by these new technologies, carriers must greatly increase the\\nnumber of cell sites nationwide. Verizon, for example, recently estimated that upgrading the\\nnation’s wireless infrastructure to prepare for 5G will require “100 times more antenna locations\\nthan currently exist,” and AT&T projected “that providers will deploy hundreds of thousands of\\nwireless facilities in the next few years alone—equal to or more than the number providers have\\ndeployed in total over the last few decades.” In the Matter of Accelerating Wireless Broadband\\nDeployment by Removing Barriers to Infrastructure Inv., F.C.C. No. 18-133, 2018 WL 4678555,\\nat *17 (Sept. 27, 2018).\\n\\n Against the backdrop of this new era of connected devices, § 2703(d) of the SCA—a\\nprovision first drafted 25 years ago—permits law enforcement to obtain certain records of a\\n\\f No. 14-1572 United States v. Carpenter Page 3\\n\\n\\nperson’s wireless communications whenever the government “offers specific and articulable\\nfacts showing that there are reasonable grounds to believe” the records sought “are relevant and\\nmaterial to an ongoing criminal investigation.” See Communications Assistance for Law\\nEnforcement Act, Pub. L. No. 103-414, 108 Stat. 4279, 4292 (1994). Unlike other provisions of\\nthe SCA, the court-ordered production mechanism in § 2703(d) does not require law\\nenforcement to get a warrant before acquiring these records. Compare 18 U.S.C. § 2703(d) with\\nid. § 2703(a), (c)(1)(A). In this case, the Government collected Carpenter’s CSLI under\\n§ 2703(d); it did not obtain a warrant.\\n\\n B. Factual and Procedural History\\n\\n Because we and the Supreme Court summarized the facts of this case in prior decisions,\\nsee Carpenter II, 138 S. Ct. at 2211–13; United States v. Carpenter (Carpenter I), 819 F.3d 880,\\n884–85 (6th Cir. 2016), we focus on the information most relevant to the analysis on remand.\\nFirst, a housekeeping matter: Carpenter I addressed the consolidated appeals of both Carpenter\\nand a codefendant, Timothy Michael Sanders, see 819 F.3d at 884, but only Carpenter sought\\nSupreme Court review. Carpenter limited his petition for certiorari to the question of whether\\nthe Fourth Amendment permits the warrantless acquisition of CSLI, see Petition for Writ of\\nCertiorari, Carpenter II, 138 S. Ct. 2206 (No. 16-402), and did not include the other grounds for\\nappeal that he raised (and we rejected) in Carpenter I, see 819 F.3d at 890–93. We adopt\\nCarpenter I’s treatment of those issues not considered in Carpenter II. Our task here is only to\\napply the Supreme Court’s Fourth Amendment analysis to Carpenter’s case.\\n\\n A federal jury convicted Carpenter of robbery and gun charges after he and others\\ncommitted a string of robberies in Michigan and Ohio between 2010 and 2012. During its\\ninvestigation, the Government sought court orders under § 2703(d) for Carpenter’s CSLI. In\\nresponse to the Government’s applications, two magistrate judges ordered Carpenter’s wireless\\ncarriers to provide “the locations of cell/site sector (physical addresses) for the target telephones\\nat call origination and at call termination for incoming and outgoing calls.” Carpenter II\\ndescribed the scope of the CSLI turned over by Carpenter’s carriers:\\n\\f No. 14-1572 United States v. Carpenter Page 4\\n\\n\\n The first order sought 152 days of cell-site records from MetroPCS, which\\n produced records spanning 127 days. The second order requested seven days of\\n CSLI from Sprint, which produced two days of records covering the period when\\n Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the\\n Government obtained 12,898 location points cataloging Carpenter’s\\n movements—an average of 101 data points per day.\\n\\n138 S. Ct. at 2212. Carpenter joined Sanders’s motion in limine to suppress the cell phone data,\\nwhich the district court denied.\\n\\n At trial, the Government used Carpenter’s CSLI to create a record of his physical\\nproximity to many of the alleged robberies:\\n\\n With the cell-site data provided by Carpenter’s and Sanders’s wireless carriers,\\n [FBI agent Christopher] Hess created maps showing that Carpenter’s and\\n Sanders’s phones were within a half-mile to two miles of the location of each of\\n the robberies around the time the robberies happened. Hess used MetroPCS call-\\n detail records, for example, to show that Carpenter was within that proximity of a\\n Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010.\\n Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone\\n received a call that lasted about four minutes. At the start and end of the call,\\n Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2,\\n located southwest of the store and whose signals point north-northeast. After the\\n robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3,\\n located northeast of the store, its signal pointing southwest; when the call ended,\\n Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside\\n Interstate 94, north of the Radio Shack. Hess provided similar analysis\\n concerning the locations of Carpenter’s and Sanders’s phones at the time of a\\n December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio;\\n and an April 5, 2011 robbery in Detroit.\\n\\nCarpenter I, 819 F.3d at 885. The Government emphasized the importance of Carpenter’s CSLI\\nduring its closing argument, saying: “Then there’s another overlay of corroboration and that is\\nthe phone data tracking. Little Tim[othy Carpenter]’s phone just happened to be right where the\\nfirst robbery was at the exact time of the robbery, the exact sector.”\\n\\n A jury convicted Carpenter of Hobbs Act robbery and related gun charges in violation of\\n18 U.S.C. §§ 924(c) and 1951(a). The district court sentenced him to more than 100 years in\\nprison, and he appealed. We affirmed in a divided opinion, with the majority rejecting\\nCarpenter’s claim that the Government’s collection of his CSLI was a warrantless search in\\n\\f No. 14-1572 United States v. Carpenter Page 5\\n\\n\\nviolation of the Fourth Amendment. Carpenter filed a petition for certiorari, which the Supreme\\nCourt granted.\\n\\n C. Carpenter II\\n\\n Carpenter II begins by situating the Government’s acquisition of Carpenter’s CSLI at\\n“the intersection of two lines” of Fourth Amendment precedent. 138 S. Ct. at 2214–15. The first\\nline “addresses a person’s expectation of privacy in his physical location and movements,” while\\nthe second holds that “a person has no legitimate expectation of privacy in information he\\nvoluntarily turns over to third parties.” See id. at 2215–16 (citation omitted); see also Carpenter\\nI, 819 F.3d at 895 (Stranch, J., concurring in the judgment).\\n\\n As for the first line of precedent, Carpenter II explained that “when the Government\\ntracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an\\nankle monitor to the phone’s user.” 138 S. Ct. at 2218. Key to the Court’s reasoning was the\\ninability of CSLI to distinguish between public and private life: because a cell phone “faithfully\\nfollows its owner beyond public thoroughfares and into private residences, doctor’s offices,\\npolitical headquarters, and other potentially revealing locales,” any collection of CSLI risks\\nopening “an intimate window into a person’s life, revealing not only his particular movements,\\nbut through them his ‘familial, political, professional, religious, and sexual associations.’” Id. at\\n2217 (quoting United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)).\\nThe Court found that Carpenter had a “reasonable expectation of privacy in the whole of his\\nphysical movements” as recorded by his CSLI. Id. at 2219.\\n\\n Under the second line of cases, the Court held that the third-party doctrine did not shield\\nthe Government’s collection of CSLI from Fourth Amendment safeguards. That doctrine\\noriginated decades ago, when “few could have imagined a society in which a phone goes\\nwherever its owner goes[.]” Id. at 2217. Nor could prior courts have anticipated the “depth,\\nbreadth, and comprehensive reach” of the CSLI used by law enforcement today. Id. at 2223.\\nBecause cell phone owners do not, in any “meaningful sense,” choose to turn over such a\\nthorough record of their public and private lives, the Court found that the acquisition of\\n\\f No. 14-1572 United States v. Carpenter Page 6\\n\\n\\nCarpenter’s CSLI was a Fourth Amendment search regardless of whether the Government\\nobtained the data from a third party. Id. at 2220.\\n\\n With the Supreme Court’s guidance in mind, we reevaluate whether the district court\\nproperly permitted the Government to introduce Carpenter’s CSLI at trial.\\n\\n II. ANALYSIS\\n\\n “When reviewing the denial of a motion to suppress, we will set aside the district court’s\\nfactual findings only if they are clearly erroneous, but will review de novo the court’s\\nconclusions of law.” United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015). The Supreme\\nCourt’s decision in Carpenter II leaves no doubt that the Government’s collection of Carpenter’s\\nCSLI was a search under the Fourth Amendment. The Government needed a warrant to obtain\\nthat information, and the district court erred in concluding otherwise. As Carpenter II explained:\\n“Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s\\nobligation is a familiar one—get a warrant.” 138 S. Ct. at 2221.\\n\\n Although the Government should have obtained a warrant in this case, we may\\nnevertheless affirm the district court’s decision if the Government acquired Carpenter’s CSLI in\\ngood faith reliance on the SCA. “Though evidence obtained in violation of the Fourth\\nAmendment is generally excluded, the Supreme Court has held that the exclusionary rule ‘should\\nbe modified so as not to bar the admission of evidence seized in reasonable, good faith reliance\\non a search warrant that is subsequently held to be defective.’” United States v. Frazier, 423\\nF.3d 526, 533 (6th Cir. 2005) (quoting United States v. Leon, 468 U.S. 897, 905 (1984)). In\\nIllinois v. Krull, the Court extended Leon’s good faith exception to evidence obtained in\\nreasonable reliance on a statute that is later declared unconstitutional, reasoning “that the greatest\\ndeterrent to the enactment of unconstitutional statutes by a legislature is the power of the courts\\nto invalidate such statutes.” 480 U.S. 340, 352 (1987); see also id. at 349 (“The application of\\nthe exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable\\nreliance on a statute would have as little deterrent effect on the officer’s actions as would the\\nexclusion of evidence when an officer acts in objectively reasonable reliance on a warrant.”).\\n\\f No. 14-1572 United States v. Carpenter Page 7\\n\\n\\n That Carpenter II did not invalidate § 2703(d) whole cloth does not meaningfully\\ndistinguish this case from Krull. What matters is whether it was objectively reasonable for the\\nofficers to rely on the statute at the time of the search. See id. Here, it was not unreasonable for\\nthe FBI agents who acquired Carpenter’s CSLI to rely on § 2703(d). The SCA contemplates the\\nFourth Amendment’s protections by specifying some instances where warrants are necessary,\\nsee 18 U.S.C. § 2703(a), (c)(1)(A), so one can understand why the agents might have believed—\\nwrongly, it turns out—that a warrant was not required to obtain CSLI under § 2703(d). And it\\nwas not just these officers who believed that § 2703(d) empowered the Government to acquire\\nCSLI without a warrant. Two magistrate judges issued court orders granting the Government’s\\nrequest to compel the production of Carpenter’s CSLI. At the time these requests were granted,\\nthis circuit had already considered reliance on § 2703(d) to be reasonable. See United States v.\\nWarshak, 631 F.3d 266, 288–89 (6th Cir. 2010) (finding that government agents relied on\\n§ 2703(d) in good faith when compelling a defendant’s internet service provider to produce the\\ndefendant’s emails).1 And despite Carpenter’s arguments to the contrary, nothing in the record\\nsuggests that the FBI agents who obtained his CSLI engaged in intentional misconduct.\\n\\n Carpenter II confirmed that the SCA does not immunize a government officer’s\\ncollection of CSLI from the safeguards of the Fourth Amendment. Moving forward, traditional\\nFourth Amendment principles will replace reflexive or mechanical use of § 2703(d). The\\ngovernment must either get a warrant or rely on a recognized exception to the warrant\\nrequirement.\\n\\n III. CONCLUSION\\n\\n Carpenter II teaches that, to avoid “embarrass[ing] the future,” courts must carefully and\\nincrementally adapt their Fourth Amendment jurisprudence to advancements in the digital era.\\n138 S. Ct. at 2220 (citation omitted). The Government’s acquisition of Carpenter’s CSLI\\nviolated the Fourth Amendment. The district court nevertheless properly denied suppression\\n\\n\\n 1\\n Although Warshak announced a prospective rule barring the warrantless search of a suspect’s\\nprivate emails under § 2703(d), the court did not address any other circumstances where reliance on\\n§ 2703(d) might be unreasonable. The decision in Warshak therefore would not have alerted the agents in\\nCarpenter’s case to the unconstitutionality of seeking the CSLI at issue here.\\n\\fNo. 14-1572 United States v. Carpenter Page 8\\n\\n\\nbecause the FBI agents relied in good faith on the SCA when they obtained the data. We\\ntherefore AFFIRM.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405589/\", \"author_raw\": \"JANE B. STRANCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"GUY"},"judge2":{"kind":"string","value":"KETHLEDGE"},"judge3":{"kind":"string","value":"STRANCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"GUY\": \", Circuit\", \"KETHLEDGE\": \", Circuit\", \"STRANCH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628336/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Ivory CARPENTER, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0126p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 14-1572\n v. │\n │\n │\n TIMOTHY IVORY CARPENTER, │\n Defendant-Appellant. │\n ┘\n\n On Remand from the United States Supreme Court.\n United States District Court for the Eastern District of Michigan at Detroit.\n No. 2:12-cr-20218-4—Sean F. Cox, District Judge.\n\n Decided and Filed: June 11, 2019\n\n Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.\n _________________\n\n OPINION\n _________________\n\n JANE B. STRANCH, Circuit Judge. This case returns on remand from the Supreme\nCourt. In our prior opinion, the majority held that the Government’s warrantless collection of\nTimothy Ivory Carpenter’s cell-site location information (CSLI) did not violate the Fourth\nAmendment. The Supreme Court disagreed. The unconstitutionality of the Government’s\nsearch was not clear until after the Supreme Court reversed our decision, which leads us to the\nquestion of whether the FBI agents who obtained Carpenter’s CSLI acted in good faith. Because\nthese agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the\njudgment of the district court.\n\f No. 14-1572 United States v. Carpenter Page 2\n\n\n I. BACKGROUND\n\n A. CSLI and the SCA\n\n We begin with the basics of CSLI and the related legal framework. CSLI refers to the\ntime-stamped location records generated each time a wireless device communicates with a\ncarrier’s network by connecting to the nearest antenna, known as a “cell site.” Carpenter v.\nUnited States (Carpenter II), 138 S. Ct. 2206, 2211 (2018). As cell phone usage has become\nubiquitous, cell sites have proliferated. Id. Each new cell site, in turn, enhances the precision of\ncell phone owners’ CSLI. Even in the time elapsed between Carpenter’s trial and the Supreme\nCourt’s decision in Carpenter II, CSLI had “rapidly approach[ed] GPS-level precision.” Id. at\n2219; see also id. (“[W]ith new technology measuring the time and angle of signals hitting their\ntowers, wireless carriers already have the capability to pinpoint a phone’s location within 50\nmeters.”).\n\n The imminent launch of fifth-generation wireless technology, known as 5G, promises to\nmultiply the number of cell sites in this country. Wireless networks once designed to carry cell\nphone traffic will soon support an unprecedented number of devices connected across industries,\nincluding autonomous vehicles, smart homes, wearable devices, industrial machinery, and\ndrones. See Jill C. Gallagher & Michael E. DeVine, Cong. Research Serv., R45485, Fifth-\nGeneration (5G) Telecommunications Technologies: Issues for Congress 2–6 (2019). To handle\nall the wireless data transmitted by these new technologies, carriers must greatly increase the\nnumber of cell sites nationwide. Verizon, for example, recently estimated that upgrading the\nnation’s wireless infrastructure to prepare for 5G will require “100 times more antenna locations\nthan currently exist,” and AT&T projected “that providers will deploy hundreds of thousands of\nwireless facilities in the next few years alone—equal to or more than the number providers have\ndeployed in total over the last few decades.” In the Matter of Accelerating Wireless Broadband\nDeployment by Removing Barriers to Infrastructure Inv., F.C.C. No. 18-133, 2018 WL 4678555,\nat *17 (Sept. 27, 2018).\n\n Against the backdrop of this new era of connected devices, § 2703(d) of the SCA—a\nprovision first drafted 25 years ago—permits law enforcement to obtain certain records of a\n\f No. 14-1572 United States v. Carpenter Page 3\n\n\nperson’s wireless communications whenever the government “offers specific and articulable\nfacts showing that there are reasonable grounds to believe” the records sought “are relevant and\nmaterial to an ongoing criminal investigation.” See Communications Assistance for Law\nEnforcement Act, Pub. L. No. 103-414, 108 Stat. 4279, 4292 (1994). Unlike other provisions of\nthe SCA, the court-ordered production mechanism in § 2703(d) does not require law\nenforcement to get a warrant before acquiring these records. Compare 18 U.S.C. § 2703(d) with\nid. § 2703(a), (c)(1)(A). In this case, the Government collected Carpenter’s CSLI under\n§ 2703(d); it did not obtain a warrant.\n\n B. Factual and Procedural History\n\n Because we and the Supreme Court summarized the facts of this case in prior decisions,\nsee Carpenter II, 138 S. Ct. at 2211–13; United States v. Carpenter (Carpenter I), 819 F.3d 880,\n884–85 (6th Cir. 2016), we focus on the information most relevant to the analysis on remand.\nFirst, a housekeeping matter: Carpenter I addressed the consolidated appeals of both Carpenter\nand a codefendant, Timothy Michael Sanders, see 819 F.3d at 884, but only Carpenter sought\nSupreme Court review. Carpenter limited his petition for certiorari to the question of whether\nthe Fourth Amendment permits the warrantless acquisition of CSLI, see Petition for Writ of\nCertiorari, Carpenter II, 138 S. Ct. 2206 (No. 16-402), and did not include the other grounds for\nappeal that he raised (and we rejected) in Carpenter I, see 819 F.3d at 890–93. We adopt\nCarpenter I’s treatment of those issues not considered in Carpenter II. Our task here is only to\napply the Supreme Court’s Fourth Amendment analysis to Carpenter’s case.\n\n A federal jury convicted Carpenter of robbery and gun charges after he and others\ncommitted a string of robberies in Michigan and Ohio between 2010 and 2012. During its\ninvestigation, the Government sought court orders under § 2703(d) for Carpenter’s CSLI. In\nresponse to the Government’s applications, two magistrate judges ordered Carpenter’s wireless\ncarriers to provide “the locations of cell/site sector (physical addresses) for the target telephones\nat call origination and at call termination for incoming and outgoing calls.” Carpenter II\ndescribed the scope of the CSLI turned over by Carpenter’s carriers:\n\f No. 14-1572 United States v. Carpenter Page 4\n\n\n The first order sought 152 days of cell-site records from MetroPCS, which\n produced records spanning 127 days. The second order requested seven days of\n CSLI from Sprint, which produced two days of records covering the period when\n Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the\n Government obtained 12,898 location points cataloging Carpenter’s\n movements—an average of 101 data points per day.\n\n138 S. Ct. at 2212. Carpenter joined Sanders’s motion in limine to suppress the cell phone data,\nwhich the district court denied.\n\n At trial, the Government used Carpenter’s CSLI to create a record of his physical\nproximity to many of the alleged robberies:\n\n With the cell-site data provided by Carpenter’s and Sanders’s wireless carriers,\n [FBI agent Christopher] Hess created maps showing that Carpenter’s and\n Sanders’s phones were within a half-mile to two miles of the location of each of\n the robberies around the time the robberies happened. Hess used MetroPCS call-\n detail records, for example, to show that Carpenter was within that proximity of a\n Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010.\n Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone\n received a call that lasted about four minutes. At the start and end of the call,\n Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2,\n located southwest of the store and whose signals point north-northeast. After the\n robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3,\n located northeast of the store, its signal pointing southwest; when the call ended,\n Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside\n Interstate 94, north of the Radio Shack. Hess provided similar analysis\n concerning the locations of Carpenter’s and Sanders’s phones at the time of a\n December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio;\n and an April 5, 2011 robbery in Detroit.\n\nCarpenter I, 819 F.3d at 885. The Government emphasized the importance of Carpenter’s CSLI\nduring its closing argument, saying: “Then there’s another overlay of corroboration and that is\nthe phone data tracking. Little Tim[othy Carpenter]’s phone just happened to be right where the\nfirst robbery was at the exact time of the robbery, the exact sector.”\n\n A jury convicted Carpenter of Hobbs Act robbery and related gun charges in violation of\n18 U.S.C. §§ 924(c) and 1951(a). The district court sentenced him to more than 100 years in\nprison, and he appealed. We affirmed in a divided opinion, with the majority rejecting\nCarpenter’s claim that the Government’s collection of his CSLI was a warrantless search in\n\f No. 14-1572 United States v. Carpenter Page 5\n\n\nviolation of the Fourth Amendment. Carpenter filed a petition for certiorari, which the Supreme\nCourt granted.\n\n C. Carpenter II\n\n Carpenter II begins by situating the Government’s acquisition of Carpenter’s CSLI at\n“the intersection of two lines” of Fourth Amendment precedent. 138 S. Ct. at 2214–15. The first\nline “addresses a person’s expectation of privacy in his physical location and movements,” while\nthe second holds that “a person has no legitimate expectation of privacy in information he\nvoluntarily turns over to third parties.” See id. at 2215–16 (citation omitted); see also Carpenter\nI, 819 F.3d at 895 (Stranch, J., concurring in the judgment).\n\n As for the first line of precedent, Carpenter II explained that “when the Government\ntracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an\nankle monitor to the phone’s user.” 138 S. Ct. at 2218. Key to the Court’s reasoning was the\ninability of CSLI to distinguish between public and private life: because a cell phone “faithfully\nfollows its owner beyond public thoroughfares and into private residences, doctor’s offices,\npolitical headquarters, and other potentially revealing locales,” any collection of CSLI risks\nopening “an intimate window into a person’s life, revealing not only his particular movements,\nbut through them his ‘familial, political, professional, religious, and sexual associations.’” Id. at\n2217 (quoting United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)).\nThe Court found that Carpenter had a “reasonable expectation of privacy in the whole of his\nphysical movements” as recorded by his CSLI. Id. at 2219.\n\n Under the second line of cases, the Court held that the third-party doctrine did not shield\nthe Government’s collection of CSLI from Fourth Amendment safeguards. That doctrine\noriginated decades ago, when “few could have imagined a society in which a phone goes\nwherever its owner goes[.]” Id. at 2217. Nor could prior courts have anticipated the “depth,\nbreadth, and comprehensive reach” of the CSLI used by law enforcement today. Id. at 2223.\nBecause cell phone owners do not, in any “meaningful sense,” choose to turn over such a\nthorough record of their public and private lives, the Court found that the acquisition of\n\f No. 14-1572 United States v. Carpenter Page 6\n\n\nCarpenter’s CSLI was a Fourth Amendment search regardless of whether the Government\nobtained the data from a third party. Id. at 2220.\n\n With the Supreme Court’s guidance in mind, we reevaluate whether the district court\nproperly permitted the Government to introduce Carpenter’s CSLI at trial.\n\n II. ANALYSIS\n\n “When reviewing the denial of a motion to suppress, we will set aside the district court’s\nfactual findings only if they are clearly erroneous, but will review de novo the court’s\nconclusions of law.” United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015). The Supreme\nCourt’s decision in Carpenter II leaves no doubt that the Government’s collection of Carpenter’s\nCSLI was a search under the Fourth Amendment. The Government needed a warrant to obtain\nthat information, and the district court erred in concluding otherwise. As Carpenter II explained:\n“Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s\nobligation is a familiar one—get a warrant.” 138 S. Ct. at 2221.\n\n Although the Government should have obtained a warrant in this case, we may\nnevertheless affirm the district court’s decision if the Government acquired Carpenter’s CSLI in\ngood faith reliance on the SCA. “Though evidence obtained in violation of the Fourth\nAmendment is generally excluded, the Supreme Court has held that the exclusionary rule ‘should\nbe modified so as not to bar the admission of evidence seized in reasonable, good faith reliance\non a search warrant that is subsequently held to be defective.’” United States v. Frazier, 423\nF.3d 526, 533 (6th Cir. 2005) (quoting United States v. Leon, 468 U.S. 897, 905 (1984)). In\nIllinois v. Krull, the Court extended Leon’s good faith exception to evidence obtained in\nreasonable reliance on a statute that is later declared unconstitutional, reasoning “that the greatest\ndeterrent to the enactment of unconstitutional statutes by a legislature is the power of the courts\nto invalidate such statutes.” 480 U.S. 340, 352 (1987); see also id. at 349 (“The application of\nthe exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable\nreliance on a statute would have as little deterrent effect on the officer’s actions as would the\nexclusion of evidence when an officer acts in objectively reasonable reliance on a warrant.”).\n\f No. 14-1572 United States v. Carpenter Page 7\n\n\n That Carpenter II did not invalidate § 2703(d) whole cloth does not meaningfully\ndistinguish this case from Krull. What matters is whether it was objectively reasonable for the\nofficers to rely on the statute at the time of the search. See id. Here, it was not unreasonable for\nthe FBI agents who acquired Carpenter’s CSLI to rely on § 2703(d). The SCA contemplates the\nFourth Amendment’s protections by specifying some instances where warrants are necessary,\nsee 18 U.S.C. § 2703(a), (c)(1)(A), so one can understand why the agents might have believed—\nwrongly, it turns out—that a warrant was not required to obtain CSLI under § 2703(d). And it\nwas not just these officers who believed that § 2703(d) empowered the Government to acquire\nCSLI without a warrant. Two magistrate judges issued court orders granting the Government’s\nrequest to compel the production of Carpenter’s CSLI. At the time these requests were granted,\nthis circuit had already considered reliance on § 2703(d) to be reasonable. See United States v.\nWarshak, 631 F.3d 266, 288–89 (6th Cir. 2010) (finding that government agents relied on\n§ 2703(d) in good faith when compelling a defendant’s internet service provider to produce the\ndefendant’s emails).1 And despite Carpenter’s arguments to the contrary, nothing in the record\nsuggests that the FBI agents who obtained his CSLI engaged in intentional misconduct.\n\n Carpenter II confirmed that the SCA does not immunize a government officer’s\ncollection of CSLI from the safeguards of the Fourth Amendment. Moving forward, traditional\nFourth Amendment principles will replace reflexive or mechanical use of § 2703(d). The\ngovernment must either get a warrant or rely on a recognized exception to the warrant\nrequirement.\n\n III. CONCLUSION\n\n Carpenter II teaches that, to avoid “embarrass[ing] the future,” courts must carefully and\nincrementally adapt their Fourth Amendment jurisprudence to advancements in the digital era.\n138 S. Ct. at 2220 (citation omitted). The Government’s acquisition of Carpenter’s CSLI\nviolated the Fourth Amendment. The district court nevertheless properly denied suppression\n\n\n 1\n Although Warshak announced a prospective rule barring the warrantless search of a suspect’s\nprivate emails under § 2703(d), the court did not address any other circumstances where reliance on\n§ 2703(d) might be unreasonable. The decision in Warshak therefore would not have alerted the agents in\nCarpenter’s case to the unconstitutionality of seeking the CSLI at issue here.\n\fNo. 14-1572 United States v. Carpenter Page 8\n\n\nbecause the FBI agents relied in good faith on the SCA when they obtained the data. We\ntherefore AFFIRM.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Ivory CARPENTER, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0126p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │\\n > No. 14-1572\\n v. │\\n │\\n │\\n TIMOTHY IVORY CARPENTER, │\\n Defendant-Appellant. │\\n ┘\\n\\n On Remand from the United States Supreme Court.\\n United States District Court for the Eastern District of Michigan at Detroit.\\n No. 2:12-cr-20218-4—Sean F. Cox, District Judge.\\n\\n Decided and Filed: June 11, 2019\\n\\n Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.\\n _________________\\n\\n OPINION\\n _________________\\n\\n JANE B. STRANCH, Circuit Judge. This case returns on remand from the Supreme\\nCourt. In our prior opinion, the majority held that the Government’s warrantless collection of\\nTimothy Ivory Carpenter’s cell-site location information (CSLI) did not violate the Fourth\\nAmendment. The Supreme Court disagreed. The unconstitutionality of the Government’s\\nsearch was not clear until after the Supreme Court reversed our decision, which leads us to the\\nquestion of whether the FBI agents who obtained Carpenter’s CSLI acted in good faith. Because\\nthese agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the\\njudgment of the district court.\\n\\f No. 14-1572 United States v. Carpenter Page 2\\n\\n\\n I. BACKGROUND\\n\\n A. CSLI and the SCA\\n\\n We begin with the basics of CSLI and the related legal framework. CSLI refers to the\\ntime-stamped location records generated each time a wireless device communicates with a\\ncarrier’s network by connecting to the nearest antenna, known as a “cell site.” Carpenter v.\\nUnited States (Carpenter II), 138 S. Ct. 2206, 2211 (2018). As cell phone usage has become\\nubiquitous, cell sites have proliferated. Id. Each new cell site, in turn, enhances the precision of\\ncell phone owners’ CSLI. Even in the time elapsed between Carpenter’s trial and the Supreme\\nCourt’s decision in Carpenter II, CSLI had “rapidly approach[ed] GPS-level precision.” Id. at\\n2219; see also id. (“[W]ith new technology measuring the time and angle of signals hitting their\\ntowers, wireless carriers already have the capability to pinpoint a phone’s location within 50\\nmeters.”).\\n\\n The imminent launch of fifth-generation wireless technology, known as 5G, promises to\\nmultiply the number of cell sites in this country. Wireless networks once designed to carry cell\\nphone traffic will soon support an unprecedented number of devices connected across industries,\\nincluding autonomous vehicles, smart homes, wearable devices, industrial machinery, and\\ndrones. See Jill C. Gallagher & Michael E. DeVine, Cong. Research Serv., R45485, Fifth-\\nGeneration (5G) Telecommunications Technologies: Issues for Congress 2–6 (2019). To handle\\nall the wireless data transmitted by these new technologies, carriers must greatly increase the\\nnumber of cell sites nationwide. Verizon, for example, recently estimated that upgrading the\\nnation’s wireless infrastructure to prepare for 5G will require “100 times more antenna locations\\nthan currently exist,” and AT&T projected “that providers will deploy hundreds of thousands of\\nwireless facilities in the next few years alone—equal to or more than the number providers have\\ndeployed in total over the last few decades.” In the Matter of Accelerating Wireless Broadband\\nDeployment by Removing Barriers to Infrastructure Inv., F.C.C. No. 18-133, 2018 WL 4678555,\\nat *17 (Sept. 27, 2018).\\n\\n Against the backdrop of this new era of connected devices, § 2703(d) of the SCA—a\\nprovision first drafted 25 years ago—permits law enforcement to obtain certain records of a\\n\\f No. 14-1572 United States v. Carpenter Page 3\\n\\n\\nperson’s wireless communications whenever the government “offers specific and articulable\\nfacts showing that there are reasonable grounds to believe” the records sought “are relevant and\\nmaterial to an ongoing criminal investigation.” See Communications Assistance for Law\\nEnforcement Act, Pub. L. No. 103-414, 108 Stat. 4279, 4292 (1994). Unlike other provisions of\\nthe SCA, the court-ordered production mechanism in § 2703(d) does not require law\\nenforcement to get a warrant before acquiring these records. Compare 18 U.S.C. § 2703(d) with\\nid. § 2703(a), (c)(1)(A). In this case, the Government collected Carpenter’s CSLI under\\n§ 2703(d); it did not obtain a warrant.\\n\\n B. Factual and Procedural History\\n\\n Because we and the Supreme Court summarized the facts of this case in prior decisions,\\nsee Carpenter II, 138 S. Ct. at 2211–13; United States v. Carpenter (Carpenter I), 819 F.3d 880,\\n884–85 (6th Cir. 2016), we focus on the information most relevant to the analysis on remand.\\nFirst, a housekeeping matter: Carpenter I addressed the consolidated appeals of both Carpenter\\nand a codefendant, Timothy Michael Sanders, see 819 F.3d at 884, but only Carpenter sought\\nSupreme Court review. Carpenter limited his petition for certiorari to the question of whether\\nthe Fourth Amendment permits the warrantless acquisition of CSLI, see Petition for Writ of\\nCertiorari, Carpenter II, 138 S. Ct. 2206 (No. 16-402), and did not include the other grounds for\\nappeal that he raised (and we rejected) in Carpenter I, see 819 F.3d at 890–93. We adopt\\nCarpenter I’s treatment of those issues not considered in Carpenter II. Our task here is only to\\napply the Supreme Court’s Fourth Amendment analysis to Carpenter’s case.\\n\\n A federal jury convicted Carpenter of robbery and gun charges after he and others\\ncommitted a string of robberies in Michigan and Ohio between 2010 and 2012. During its\\ninvestigation, the Government sought court orders under § 2703(d) for Carpenter’s CSLI. In\\nresponse to the Government’s applications, two magistrate judges ordered Carpenter’s wireless\\ncarriers to provide “the locations of cell/site sector (physical addresses) for the target telephones\\nat call origination and at call termination for incoming and outgoing calls.” Carpenter II\\ndescribed the scope of the CSLI turned over by Carpenter’s carriers:\\n\\f No. 14-1572 United States v. Carpenter Page 4\\n\\n\\n The first order sought 152 days of cell-site records from MetroPCS, which\\n produced records spanning 127 days. The second order requested seven days of\\n CSLI from Sprint, which produced two days of records covering the period when\\n Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the\\n Government obtained 12,898 location points cataloging Carpenter’s\\n movements—an average of 101 data points per day.\\n\\n138 S. Ct. at 2212. Carpenter joined Sanders’s motion in limine to suppress the cell phone data,\\nwhich the district court denied.\\n\\n At trial, the Government used Carpenter’s CSLI to create a record of his physical\\nproximity to many of the alleged robberies:\\n\\n With the cell-site data provided by Carpenter’s and Sanders’s wireless carriers,\\n [FBI agent Christopher] Hess created maps showing that Carpenter’s and\\n Sanders’s phones were within a half-mile to two miles of the location of each of\\n the robberies around the time the robberies happened. Hess used MetroPCS call-\\n detail records, for example, to show that Carpenter was within that proximity of a\\n Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010.\\n Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone\\n received a call that lasted about four minutes. At the start and end of the call,\\n Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2,\\n located southwest of the store and whose signals point north-northeast. After the\\n robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3,\\n located northeast of the store, its signal pointing southwest; when the call ended,\\n Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside\\n Interstate 94, north of the Radio Shack. Hess provided similar analysis\\n concerning the locations of Carpenter’s and Sanders’s phones at the time of a\\n December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio;\\n and an April 5, 2011 robbery in Detroit.\\n\\nCarpenter I, 819 F.3d at 885. The Government emphasized the importance of Carpenter’s CSLI\\nduring its closing argument, saying: “Then there’s another overlay of corroboration and that is\\nthe phone data tracking. Little Tim[othy Carpenter]’s phone just happened to be right where the\\nfirst robbery was at the exact time of the robbery, the exact sector.”\\n\\n A jury convicted Carpenter of Hobbs Act robbery and related gun charges in violation of\\n18 U.S.C. §§ 924(c) and 1951(a). The district court sentenced him to more than 100 years in\\nprison, and he appealed. We affirmed in a divided opinion, with the majority rejecting\\nCarpenter’s claim that the Government’s collection of his CSLI was a warrantless search in\\n\\f No. 14-1572 United States v. Carpenter Page 5\\n\\n\\nviolation of the Fourth Amendment. Carpenter filed a petition for certiorari, which the Supreme\\nCourt granted.\\n\\n C. Carpenter II\\n\\n Carpenter II begins by situating the Government’s acquisition of Carpenter’s CSLI at\\n“the intersection of two lines” of Fourth Amendment precedent. 138 S. Ct. at 2214–15. The first\\nline “addresses a person’s expectation of privacy in his physical location and movements,” while\\nthe second holds that “a person has no legitimate expectation of privacy in information he\\nvoluntarily turns over to third parties.” See id. at 2215–16 (citation omitted); see also Carpenter\\nI, 819 F.3d at 895 (Stranch, J., concurring in the judgment).\\n\\n As for the first line of precedent, Carpenter II explained that “when the Government\\ntracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an\\nankle monitor to the phone’s user.” 138 S. Ct. at 2218. Key to the Court’s reasoning was the\\ninability of CSLI to distinguish between public and private life: because a cell phone “faithfully\\nfollows its owner beyond public thoroughfares and into private residences, doctor’s offices,\\npolitical headquarters, and other potentially revealing locales,” any collection of CSLI risks\\nopening “an intimate window into a person’s life, revealing not only his particular movements,\\nbut through them his ‘familial, political, professional, religious, and sexual associations.’” Id. at\\n2217 (quoting United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)).\\nThe Court found that Carpenter had a “reasonable expectation of privacy in the whole of his\\nphysical movements” as recorded by his CSLI. Id. at 2219.\\n\\n Under the second line of cases, the Court held that the third-party doctrine did not shield\\nthe Government’s collection of CSLI from Fourth Amendment safeguards. That doctrine\\noriginated decades ago, when “few could have imagined a society in which a phone goes\\nwherever its owner goes[.]” Id. at 2217. Nor could prior courts have anticipated the “depth,\\nbreadth, and comprehensive reach” of the CSLI used by law enforcement today. Id. at 2223.\\nBecause cell phone owners do not, in any “meaningful sense,” choose to turn over such a\\nthorough record of their public and private lives, the Court found that the acquisition of\\n\\f No. 14-1572 United States v. Carpenter Page 6\\n\\n\\nCarpenter’s CSLI was a Fourth Amendment search regardless of whether the Government\\nobtained the data from a third party. Id. at 2220.\\n\\n With the Supreme Court’s guidance in mind, we reevaluate whether the district court\\nproperly permitted the Government to introduce Carpenter’s CSLI at trial.\\n\\n II. ANALYSIS\\n\\n “When reviewing the denial of a motion to suppress, we will set aside the district court’s\\nfactual findings only if they are clearly erroneous, but will review de novo the court’s\\nconclusions of law.” United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015). The Supreme\\nCourt’s decision in Carpenter II leaves no doubt that the Government’s collection of Carpenter’s\\nCSLI was a search under the Fourth Amendment. The Government needed a warrant to obtain\\nthat information, and the district court erred in concluding otherwise. As Carpenter II explained:\\n“Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s\\nobligation is a familiar one—get a warrant.” 138 S. Ct. at 2221.\\n\\n Although the Government should have obtained a warrant in this case, we may\\nnevertheless affirm the district court’s decision if the Government acquired Carpenter’s CSLI in\\ngood faith reliance on the SCA. “Though evidence obtained in violation of the Fourth\\nAmendment is generally excluded, the Supreme Court has held that the exclusionary rule ‘should\\nbe modified so as not to bar the admission of evidence seized in reasonable, good faith reliance\\non a search warrant that is subsequently held to be defective.’” United States v. Frazier, 423\\nF.3d 526, 533 (6th Cir. 2005) (quoting United States v. Leon, 468 U.S. 897, 905 (1984)). In\\nIllinois v. Krull, the Court extended Leon’s good faith exception to evidence obtained in\\nreasonable reliance on a statute that is later declared unconstitutional, reasoning “that the greatest\\ndeterrent to the enactment of unconstitutional statutes by a legislature is the power of the courts\\nto invalidate such statutes.” 480 U.S. 340, 352 (1987); see also id. at 349 (“The application of\\nthe exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable\\nreliance on a statute would have as little deterrent effect on the officer’s actions as would the\\nexclusion of evidence when an officer acts in objectively reasonable reliance on a warrant.”).\\n\\f No. 14-1572 United States v. Carpenter Page 7\\n\\n\\n That Carpenter II did not invalidate § 2703(d) whole cloth does not meaningfully\\ndistinguish this case from Krull. What matters is whether it was objectively reasonable for the\\nofficers to rely on the statute at the time of the search. See id. Here, it was not unreasonable for\\nthe FBI agents who acquired Carpenter’s CSLI to rely on § 2703(d). The SCA contemplates the\\nFourth Amendment’s protections by specifying some instances where warrants are necessary,\\nsee 18 U.S.C. § 2703(a), (c)(1)(A), so one can understand why the agents might have believed—\\nwrongly, it turns out—that a warrant was not required to obtain CSLI under § 2703(d). And it\\nwas not just these officers who believed that § 2703(d) empowered the Government to acquire\\nCSLI without a warrant. Two magistrate judges issued court orders granting the Government’s\\nrequest to compel the production of Carpenter’s CSLI. At the time these requests were granted,\\nthis circuit had already considered reliance on § 2703(d) to be reasonable. See United States v.\\nWarshak, 631 F.3d 266, 288–89 (6th Cir. 2010) (finding that government agents relied on\\n§ 2703(d) in good faith when compelling a defendant’s internet service provider to produce the\\ndefendant’s emails).1 And despite Carpenter’s arguments to the contrary, nothing in the record\\nsuggests that the FBI agents who obtained his CSLI engaged in intentional misconduct.\\n\\n Carpenter II confirmed that the SCA does not immunize a government officer’s\\ncollection of CSLI from the safeguards of the Fourth Amendment. Moving forward, traditional\\nFourth Amendment principles will replace reflexive or mechanical use of § 2703(d). The\\ngovernment must either get a warrant or rely on a recognized exception to the warrant\\nrequirement.\\n\\n III. CONCLUSION\\n\\n Carpenter II teaches that, to avoid “embarrass[ing] the future,” courts must carefully and\\nincrementally adapt their Fourth Amendment jurisprudence to advancements in the digital era.\\n138 S. Ct. at 2220 (citation omitted). The Government’s acquisition of Carpenter’s CSLI\\nviolated the Fourth Amendment. The district court nevertheless properly denied suppression\\n\\n\\n 1\\n Although Warshak announced a prospective rule barring the warrantless search of a suspect’s\\nprivate emails under § 2703(d), the court did not address any other circumstances where reliance on\\n§ 2703(d) might be unreasonable. The decision in Warshak therefore would not have alerted the agents in\\nCarpenter’s case to the unconstitutionality of seeking the CSLI at issue here.\\n\\fNo. 14-1572 United States v. Carpenter Page 8\\n\\n\\nbecause the FBI agents relied in good faith on the SCA when they obtained the data. We\\ntherefore AFFIRM.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2496,"cells":{"id":{"kind":"number","value":4628338,"string":"4,628,338"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Michael J.W. POTTER, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Michael Potter"},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"18-5830"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Moore, Sutton, Murphy\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0128p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │ No. 18-5830\\n │\\n v. │\\n >\\n │\\n MICHAEL J.W. POTTER, │\\n Defendant-Appellant. ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee at Greeneville.\\n No. 2:17-cr-00012-3—J. Ronnie Greer, District Judge.\\n\\n Argued: May 2, 2019\\n\\n Decided and Filed: June 11, 2019\\n\\n Before: MOORE, SUTTON, and MURPHY, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC, Greeneville, Tennessee, for\\nAppellant. Brian Samuelson, UNITED STATES ATTORNEY’S OFFICE, Knoxville,\\nTennessee, for Appellee. ON BRIEF: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC,\\nGreeneville, Tennessee, for Appellant. Brian Samuelson, J. Gregory Bowman, UNITED\\nSTATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n MURPHY, Circuit Judge. An average “dose” of methamphetamine weighs between one-\\ntenth and one-quarter of a gram. And there are 28.3 grams to an ounce. So Michael Potter\\nconfessed to peddling a lot of doses of meth when he told police that he had sold some ten\\npounds. To make matters worse for Potter, he had been convicted of seven prior drug offenses.\\n\\f No. 18-5830 United States v. Potter Page 2\\n\\n\\nHis prior statements about his drug sales supported his conviction for a different conspiracy to\\ndistribute methamphetamine that used similar methods. 21 U.S.C. §§ 841(a)(1), 846. His prior\\ndrug offenses supported his mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii) (2012)\\n(amended 2018).\\n\\n On appeal, Potter challenges his conviction and sentence. As for his conviction, he\\nargues that the police elicited his statements after he invoked his right to an attorney under\\nMiranda v. Arizona, 384 U.S. 436 (1966), and so violated the bright-line rule to stop questioning\\nadopted by Edwards v. Arizona, 451 U.S. 477 (1981). As for his sentence, he argues that the\\nEighth Amendment bars his mandatory term of life because the child-focused logic of Miller v.\\nAlabama, 567 U.S. 460 (2012), should expand to cover adults who commit nonviolent offenses.\\nWe disagree with Potter on both fronts, reject his remaining arguments, and affirm his conviction\\nand sentence.\\n\\n I.\\n\\n In early 2015, Potter struck a deal with an acquaintance, Tammy Goodson, to make\\nmoney by selling methamphetamine in east Tennessee. Goodson would introduce Potter to\\nNathan Hogan, a Georgia meth supplier, and Potter would reciprocate by giving her a certain\\namount of money and meth for each ounce he bought from Hogan. In the first half of 2015,\\nPotter and Goodson twice drove to Georgia to buy between eight and ten ounces of meth from\\nHogan (or his runner). After Goodson’s arrest, Potter made a third trip during which he bought\\n20 ounces from Hogan. Upon each return to Tennessee, Potter went about selling the drugs.\\nAbout this time, for example, Brandin Hyde contacted Potter in search of a new supplier. Potter\\noffered Hyde an eventual price discount to undercut Potter’s “competition” if Hyde brought\\nrepeat business his way. Yet Potter and Hyde completed just one transaction.\\n\\n That is because, on June 26, 2015, police arrested Potter on unrelated charges. That\\nnight, he told police he did not want to talk. The next day, he changed his mind. After signing a\\nMiranda waiver, he spoke with Agents Jason Roark and Shannon Russell from the Tennessee\\nSecond Judicial District Drug Task Force. During this interrogation, Potter admitted that,\\n\\f No. 18-5830 United States v. Potter Page 3\\n\\n\\nstarting in August 2014, he had bought about ten pounds of methamphetamine from a different\\nGeorgia supplier (not Hogan) and sold it in east Tennessee.\\n\\n Shortly after his arrest, Potter asked his younger brother, Steven Hilliard, to collect debts\\nfrom people who owed him. Hilliard recouped funds from several people, including $4,700 from\\na person who owed Potter for meth purchases. At Potter’s urging, Hilliard also contacted Hogan\\nto give him a heads up that Potter had been arrested. That call provided the spark that eventually\\nled Hilliard to take his brother’s place in the distribution scheme. During the second half of\\n2015, Hilliard traveled to Georgia to buy methamphetamine from Hogan using the money he had\\ncollected for Potter. Potter was initially upset upon learning of this arrangement, but the brothers\\nultimately agreed that Hilliard would reimburse Potter in full and pay Potter a “couple of\\nhundred dollars” for each visit to see Hogan. Hilliard bought a pound or two of meth on each\\ntrip.\\n\\n Potter remained in custody during this time, but renewed his distribution efforts soon\\nafter his October 2016 release. He contacted Hogan via Facebook, leading to a four-ounce meth\\npurchase. He later bought eight ounces from Hogan. In February 2017, Hogan had arranged to\\nmeet Potter for another exchange, but police arrested Hogan on the day of the deal. Potter still\\ncompleted the transaction through Hogan’s runner. Their transactions ended shortly thereafter.\\nThe United States indicted Potter and twenty-four others—including Hogan, Goodson, and\\nHilliard—for a conspiracy starting on or around January 2015 to distribute fifty grams or more of\\nmethamphetamine.\\n\\n Before trial, Potter moved to suppress his statements to Agents Roark and Russell. At a\\nsuppression hearing, he testified that he had asked for a lawyer many times during the interview,\\nbut the agents ignored his requests. Russell disputed this account. He explained that Potter\\nmentioned a lawyer and “may have” asked whether he needed one, but never requested an\\nattorney or sought to stop the interrogation. The magistrate judge found Potter not credible, held\\nthat his statements about an attorney did not require the police to end their questioning, and\\nrecommended that the district court deny Potter’s motion. The district court adopted this\\nrecommendation.\\n\\f No. 18-5830 United States v. Potter Page 4\\n\\n\\n Potter stood trial. Hogan, Goodson, Hilliard, and Hyde, among others, described his drug\\ndistribution. Roark and Russell also detailed Potter’s statements to them. The jury convicted\\nPotter of the distribution conspiracy. 21 U.S.C. §§ 841(a)(1), 846. As this was his eighth felony\\ndrug conviction, Potter received a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii)\\n(2012) (amended 2018).\\n\\n II.\\n\\n Potter raises four objections. He asserts a constitutional, an evidentiary, and a sufficiency\\nchallenge to his conspiracy conviction, and a constitutional challenge to his life sentence.\\n\\n 1. Fifth Amendment Objection. Potter starts off with the Fifth Amendment, which gives\\nan individual the right not to “be compelled in any criminal case to be a witness against himself.”\\nU.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court safeguarded this\\nright by prescribing judicial rules of the road for officers who interrogate individuals in police\\ncustody, including that the individuals have a right to an attorney during the inquiry. Id. at 473–\\n74. Potter’s argument in this case concerns a second prophylaxis that the Court later adopted in\\nEdwards v. Arizona, 451 U.S. 477 (1981), to protect the Miranda right to an attorney that\\nprotects the Fifth Amendment right against self-incrimination. Edwards held that the police\\nmust immediately cease questioning if a suspect invokes the Miranda right. Id. at 484–85. It\\nthus invalidated a suspect’s waiver of the right because—even if knowingly and voluntarily\\nmade—the waiver arose from questioning after a request for a lawyer. Id. at 487. Courts\\nenforce Edwards’s “second layer of prophylaxis” through “the threat of suppression,” Davis v.\\nUnited States, 512 U.S. 452, 458, 461 (1994) (internal quotation marks omitted), so much\\ndepends on whether statements about an attorney trigger Edwards’s bright-line rule to stop\\nquestioning. Here, for example, Potter argues that the district court should have suppressed his\\nstatements about his distribution of ten pounds of methamphetamine because, contrary to\\nEdwards, Roark and Russell obtained those statements after Potter had invoked his Miranda\\nright.\\n\\n We begin with a question about the standard of review. Refusing to credit Potter’s\\ntestimony that he had requested a lawyer many times, the magistrate judge (whose report the\\n\\f No. 18-5830 United States v. Potter Page 5\\n\\n\\ndistrict court adopted) made several factual findings about what Potter told the agents. The judge\\nthen held that Potter’s statements did not suffice to launch Edwards’s rule. We, of course,\\nreview for clear error the district court’s fact findings about Potter’s credibility and what he said\\nto the agents. United States v. Scott, 693 F.3d 715, 718 (6th Cir. 2012). And we, of course,\\nreview legal questions de novo. Id. But where does the ultimate issue—whether a suspect’s\\ncredited statements sufficiently invoked a right to counsel to trigger Edwards—fall on this law-\\nversus-fact divide?\\n\\n We view it as a legal question (or at least a mixed question of law and fact) subject to\\nde novo review. Circuit precedent supports that conclusion. See Van Hook v. Anderson, 488\\nF.3d 411, 415 (6th Cir. 2007) (en banc); see also United States v. Wysinger, 683 F.3d 784, 793\\n(7th Cir. 2012); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir. 2002) (en banc); Valdez v. Ward,\\n219 F.3d 1222, 1232 (10th Cir. 2000). An analogy to the Supreme Court’s precedent does too.\\nIn the Fourth Amendment context, the Supreme Court has told lower courts to review de novo\\nthe ultimate question whether the historical circumstances (viewed from a reasonable officer’s\\nperspective) created probable cause or reasonable suspicion. Ornelas v. United States, 517 U.S.\\n690, 696–97 (1996). Its reasoning in that case, we think, covers the ultimate question in this case\\nabout whether the historical statements (again viewed from a reasonable officer’s perspective,\\nDavis, 512 U.S. at 458–59) sufficed to trigger Edwards.\\n\\n On to the merits. The Supreme Court in Davis set a high bar to trigger Edwards. To\\ncompel officers to end questioning, a “suspect must unambiguously request counsel.” Davis,\\n512 U.S. at 459. So “ambiguous or equivocal” requests for an attorney do not put reasonable\\nofficers on notice that the interrogation must stop. Id. Davis explained its rationale for this\\nstandard when responding to the argument that it might sometimes engender harsh results:\\n“[T]he primary protection” for the Fifth Amendment, Davis said, “is the Miranda warnings\\nthemselves.” Id. at 460. While Edwards added a second layer of judicial protection on top of\\nthose warnings, Davis was “unwilling” to add a third one. Id. at 462. And Davis’s bottom-line\\nholding—that a suspect who said “[m]aybe I should talk to a lawyer” did not unambiguously ask\\nfor counsel—confirms that an individual must make a firm request (minus any ambivalent\\nadverbs). Id.\\n\\f No. 18-5830 United States v. Potter Page 6\\n\\n\\n Davis’s clear command has doomed several Edwards claims in our circuit. Take, for\\nexample, the statement “I think I should talk to a lawyer, what do you think?” Was that an\\nunambiguous request for counsel? No. United States v. Delaney, 443 F. App’x 122, 130 (6th\\nCir. 2011). How about “‘[i]t would be nice’ to have an attorney”? Insufficient. Ledbetter v.\\nEdwards, 35 F.3d 1062, 1070 (6th Cir. 1994); cf. Henness v. Bagley, 644 F.3d 308, 319–20 (6th\\nCir. 2011). Or “I really should have a lawyer, huh?” Equivocal. United States v. Mays, 683\\nF. App’x 427, 433 (6th Cir. 2017); see also United States v. Amawi, 695 F.3d 457, 484–85 (6th\\nCir. 2012). For what it’s worth, other circuits have likewise rejected Edwards claims based on\\nsimilar statements. E.g., United States v. Oquendo-Rivas, 750 F.3d 12, 19 (1st Cir. 2014);\\nUnited States v. Havlik, 710 F.3d 818, 821–22 (8th Cir. 2013); Soffar, 300 F.3d at 594–95;\\nUnited States v. Zamora, 222 F.3d 756, 765–66 (10th Cir. 2000); Burket v. Angelone, 208 F.3d\\n172, 198 (4th Cir. 2000); Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996).\\n\\n We have, by contrast, found requests for an attorney unambiguous (triggering Edwards)\\nwhen a suspect told the police that he wanted to be left alone “until I can see my attorney,”\\nTolliver v. Sheets, 594 F.3d 900, 923 (6th Cir. 2010), or directed the police to “call his attorney’s\\nphone number,” Moore v. Berghuis, 700 F.3d 882, 887 (6th Cir. 2012). We have even reached\\nthat result when a person said “maybe I should talk to an attorney by the name of William\\nEvans.” Abela v. Martin, 380 F.3d 915, 926–27 (6th Cir. 2004), abrogated on other grounds by\\nGuilmette v. Howes, 624 F.3d 286 (6th Cir. 2010). Despite the “maybe” in this statement, we\\nsaid that the surrounding circumstances—the suspect referred to a specific attorney, the suspect\\nhanded the officer the attorney’s business card, and the officer said that he would call the\\nattorney—turned what would otherwise be an equivocal request into an unambiguous one. Id.;\\nsee Scott, 693 F.3d at 719–20.\\n\\n In which camp do Potter’s statements fall? They were just as equivocal as the statements\\nfrom Davis, Delaney, or Ledbetter. The magistrate judge found as a historical fact that Potter, at\\nmost, “may have mentioned an attorney.” Russell likewise testified that Potter “mentioned” an\\nattorney and “may have . . . asked if he needed one.” But Potter “never requested to actually\\nhave [an attorney] present” and “never once said that he wanted to stop” the interview to wait for\\none. Nothing in these credited facts shows that Potter unambiguously requested counsel. The\\n\\f No. 18-5830 United States v. Potter Page 7\\n\\n\\nmere mention of an attorney does not cut it. Davis, 512 U.S. at 459. Nor does a question about\\nhaving an attorney. Delaney, 443 F. App’x at 130.\\n\\n Potter’s responses fall short. He largely (if impliedly) fights the district court’s\\ncredibility findings without attempting to satisfy the clear-error standard. Potter, for example,\\nsuggests that the agents violated Edwards because he “asked numerous questions about an\\nAttorney and what one might recommend” he say (or not say) during this interrogation. That\\nunderstanding of Potter’s statements comes from his own testimony. But the magistrate judge\\nfound his “story” not credible because, among other reasons, Potter claimed that he had been\\nlying to the agents and would have said anything to get out of jail.\\n\\n Potter also points out that, on the night before the interrogation, he told the agents he did\\nnot wish to speak to them. That does not help him either. The agents honored his request, and it\\nwas Potter who initiated the exchange with them the next day. Before that interrogation, Potter\\nreceived Miranda warnings and signed a waiver stating that he understood his rights and was\\n“willing to make a statement and answer questions without a lawyer present.” As the magistrate\\njudge also found, Potter was “not interested in having an attorney present.” He wanted to talk to\\nthe agents because “he wanted out of jail” and thought it would help his chances if he did so. All\\ntold, the “circumstances surrounding” Potter’s statements cement our conclusion because they\\nshow that the agents respected the Miranda right that Edwards’s rule seeks to protect and that\\nPotter nevertheless opted to voluntarily speak with them. See Abela, 380 F.3d at 926.\\n\\n 2. Evidence Objection. Potter turns to the Federal Rules of Evidence to take a second\\nswing at the admission of his statements. He argues that the district court should have sustained\\nhis relevancy and prejudice objections (under Rules 402 and 403) because his statements\\ndiscussed different actors (not individuals charged in the indictment) and an earlier time\\n(beginning in August 2014, before the indictment’s January 2015 start date). This claim faces\\nstiff standard-of-review headwinds. We review a district court’s decision to admit or exclude\\nevidence for an abuse of discretion, leaving it “undisturbed unless we are left with the definite\\nand firm conviction that the district court committed a clear error of judgment.” United States v.\\nCleveland, 907 F.3d 423, 435–36 (6th Cir. 2018) (internal quotation marks omitted). No such\\nerror occurred here.\\n\\f No. 18-5830 United States v. Potter Page 8\\n\\n\\n Start with the relevance objection. Potter’s statements (that he had bought large amounts\\nof meth in Georgia and resold it in Tennessee) had a “tendency to make” it “more . . . probable”\\nthat he voluntarily joined the indicted conspiracy, which started at roughly the same time and\\nfollowed roughly the same methods. Fed. R. Evid. 401(a). Indeed, as evidence experts have\\nlong recognized, a prior “bad act” satisfies the relevancy test’s low bar even when used to show a\\nperson’s propensity to commit the indicted crime. See Old Chief v. United States, 519 U.S. 172,\\n180–82 (1997); 1 John H. Wigmore, Evidence in Trials at Common Law § 55, at 122–23 (1st ed.\\n1904). That is why a separate rule—Rule 404(b)—prohibits that use of “bad acts” evidence and\\nwhy most objections to this type of evidence invoke that rule. E.g., United States v. Hardy, 643\\nF.3d 143, 151–52 (6th Cir. 2011). But Potter opted not to make a Rule 404(b) objection for\\nstrategic reasons. Besides, the United States used Potter’s statements for reasons allowed by\\nRule 404(b)(2), such as to prove his intent. See United States v. Alkufi, 636 F. App’x 323, 332\\n(6th Cir. 2016).\\n\\n Turn to the prejudice objection. The district court properly balanced the “probative\\nvalue” of Potter’s statements against any “unfair prejudice.” Fed. R. Evid. 403. His statements\\nfare well under the “two factors” that our cases use to measure a prior act’s probative value: The\\nconduct that Potter’s statements described was both similar to, and close in time with, the\\nindicted conduct. See United States v. Asher, 910 F.3d 854, 860–61 (6th Cir. 2018). The district\\ncourt’s limiting instruction about the narrow uses for this evidence also diminished any unfair\\nprejudice by reducing the risk that the jury would put the evidence to an improper purpose. See\\nUnited States v. Wright, 16 F.3d 1429, 1443 (6th Cir. 1994).\\n\\n 3. Sufficiency Objection. Potter next invokes Federal Rule of Criminal Procedure 29,\\narguing that the United States presented insufficient evidence to sustain his conviction. While\\nsubject to de novo review on appeal, this claim also must surmount a demanding legal standard:\\nPotter must show that no “rational trier of fact could have found the essential elements of the\\ncrime beyond a reasonable doubt.” United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006)\\n(internal quotation marks omitted).\\n\\n To evaluate the evidence’s sufficiency, we must identify the “essential elements” of a\\nconspiracy conviction under 21 U.S.C. § 846. Ever since United States v. Welch, 97 F.3d 142\\n\\f No. 18-5830 United States v. Potter Page 9\\n\\n\\n(6th Cir. 1996), dozens of our cases have quoted (and requoted) three elements: “(1) an\\nagreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3)\\nparticipation in the conspiracy.” Id. at 148; United States v. Hines, 398 F.3d 713, 718 (6th Cir.\\n2005). Yet the jury instructions in this case—following our circuit’s longstanding pattern jury\\ninstructions, Sixth Circuit Pattern Criminal Jury Instruction 14.05(2) (Jan. 1, 2019)—identified\\ntwo elements: (1) “that two or more persons conspired or agreed to distribute 50 grams or more\\nof methamphetamine,” and (2) “that the defendant knowingly and voluntarily joined the\\nconspiracy.” Conflict? We see it as a semantic difference. Cf. Hines, 398 F.3d at 718. The\\n“participation” element cannot mean an “action” furthering the conspiracy because “proof of an\\novert act is not required to establish a violation of 21 U.S.C. § 846.” United States v. Shabani,\\n513 U.S. 10, 17 (1994). That is not what our cases meant by the term. As best we can tell, this\\nelement dates back to United States v. Christian, 786 F.2d 203 (6th Cir. 1986), which used the\\nword “participation” to distinguish joining the conspiracy (which our instructions require) with\\n“[m]ere presence at the crime scene” (which our instructions find insufficient). Id. at 211. In\\nthat sense, “participation” is synonymous with “joinder.” So whether phrased as two elements or\\nthree, a conviction under § 846 requires an agreement to violate the drug laws, the defendant’s\\nknowledge of the agreement, and the defendant’s decision to voluntarily join (or “participate in”)\\nit.\\n\\n Could a rational jury find these elements met in Potter’s case? We think so. Ample\\nevidence showed an agreement. Keep in mind that “[a]n agreement to violate the drug laws need\\nnot be express or formal. A tacit or mutual understanding among the parties is sufficient.”\\nUnited States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (internal quotation marks omitted).\\nAnd such an agreement “can be inferred from repeated purchases of large quantities of drugs.”\\nUnited States v. Sills, 662 F.3d 415, 417 (6th Cir. 2011). Here, Potter purchased\\nmethamphetamine from Hogan on at least six occasions in distribution-level amounts (between\\n4 and 20 ounces (113 to 566 grams)). Apart from these large transactions, coconspirators\\ndescribed how they agreed with Potter to distribute meth. Goodson agreed to introduce him to\\nHogan in exchange for money and drugs, and they implemented that deal by traveling to Georgia\\nto make purchases. Likewise, Potter continued his distribution efforts from jail by agreeing to\\nfront Hilliard funds to buy drugs from Hogan in exchange for a cut.\\n\\f No. 18-5830 United States v. Potter Page 10\\n\\n\\n The evidence also could lead a rational jury to find § 846’s other elements—that Potter\\nknowingly and voluntarily participated in (that is, joined) the conspiracy. Indeed, “once the\\nexistence [of] a conspiracy is shown, the evidence linking an individual defendant to that\\nconspiracy need only be slight.” Caver, 470 F.3d at 233. The jury could again rely on the\\n“repeated purchases” and “large quantity of drugs” to infer Potter’s intentional participation. Id.\\nNot only that, Potter’s warning to Hogan that he had been arrested and his speedy reconnection\\nwith Hogan upon his release both confirm that he willingly sought to further the conspiracy’s\\ndistribution goals.\\n\\n For his part, Potter asserts that this evidence established only a “buyer/seller” relationship\\nbetween Hogan (seller) and Potter (buyer) and Potter (seller) and Hyde (buyer). True enough,\\n“[a] buyer/seller relationship alone is not enough to establish participation in the conspiracy.”\\nUnited States v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999). As noted, however, Potter’s “repeat”\\ntransactions could lead a jury to find more than that insufficient relationship. United States v.\\nBrown, 332 F.3d 363, 373 (6th Cir. 2003).\\n\\n 4. Eighth Amendment Objection. Potter ends with an attack on his sentence. At the time\\nof his conduct, federal law imposed a mandatory life sentence for defendants who had two prior\\nfelony drug convictions. 21 U.S.C. § 841(b)(1)(A)(viii) (2012) (amended 2018). Potter argues\\nthat this sentence “inflict[s]” “cruel and unusual punishment[]” in violation of the Eighth\\nAmendment. U.S. Const. amend. VIII. He asks us to extend the holding of Miller v. Alabama,\\n567 U.S. 460 (2012)—that a mandatory life sentence for juveniles who commit murder violates\\nthe Eighth Amendment, id. at 479—to adults who commit nonviolent crimes. This argument\\nfaces insurmountable obstacles before this court.\\n\\n Potter’s initial obstacle is our court’s precedent. To determine whether a term of\\nimprisonment for adults violates the Eighth Amendment, the Supreme Court has adopted a\\n“‘narrow proportionality principle’” that requires a defendant to show that the term is grossly\\ndisproportionate to the crime. Ewing v. California, 538 U.S. 11, 20, 23 (2003) (plurality op.)\\n(quoting Harmelin v. Michigan, 501 U.S. 957, 997–98 (1991) (Kennedy, J., concurring in part\", \"author\": \"MURPHY, Circuit Judge\"}, {\"type\": \"concurrence\", \"author\": \"and\", \"text\": \"and concurring in judgment)). Applying this principle in 1994, we rejected an Eighth\\nAmendment challenge to the mandatory life sentence required by § 841(b)(1) for defendants\\n\\f No. 18-5830 United States v. Potter Page 11\\n\\n\\nwith two or more prior felony drug convictions. United States v. Hill, 30 F.3d 48, 50–51 (6th\\nCir. 1994).\\n\\n If Potter believes that Miller has now superseded Hill, we have also rejected similar\\nEighth Amendment challenges to § 841(b)(1) since that decision. To list a few examples: United\\nStates v. Young, 847 F.3d 328, 363–65 (6th Cir. 2017); United States v. Wilson, 653 F. App’x\\n433, 447–48 (6th Cir. 2016); United States v. Watson, 620 F. App’x 493, 517 (6th Cir. 2015).\\nThese cases comport with Miller, which reconciled its categorical rule for children with\\nHarmelin’s proportionality principle for adults on the ground that “children are different.” 567\\nU.S. at 481. While Potter notes that he was “only thirty-five years old” when charged with his\\ncrime, his age still takes him outside Miller’s orbit. See Young, 847 F.3d at 364.\\n\\n Potter’s next obstacle is our country’s continuing traditions. “The propriety of inflicting\\nseverer punishment upon old offenders has long been recognized in this country and in\\nEngland.” Graham v. West Virginia, 224 U.S. 616, 623 (1912). And recidivism enhancements\\nhave continued into recent times. Ewing, 538 U.S. at 25 (plurality op.). In 2003, for example,\\nthe Supreme Court upheld a prison term of twenty-five years to life for a defendant who stole\\nthree golf clubs precisely because of his criminal history. Id. at 28–31. To be sure, Potter\\nreceived a mandatory life sentence. But Harmelin upheld an identical sentence for possession of\\n672 grams of cocaine without even considering prior convictions. 501 U.S. at 1001–09\\n(Kennedy, J., concurring in part and concurring in judgment). Potter (like Harmelin) distributed\\nlarge amounts of drugs, but Potter (unlike Harmelin) had seven prior drug convictions to boot.\\n\\n The democratic tides are turning, Potter replies, identifying as evidence the First Step\\nAct’s amendment reducing to twenty-five years § 841(b)(1)’s mandatory minimum for those\\nwith two prior drug convictions. First Step Act of 2018, Pub. L. No. 115-391, § 401(a)(2), 132\\nStat. 5194, 5220 (amending 21 U.S.C. § 841(b)(1)(A)(viii)). According to Potter, that\\namendment evinces a recognition that it is better for nonviolent offenders to have the chance to\\nreform and reenter society. Perhaps so. But Potter also conceded that, unlike other changes in\\nthe Act, cf. id., § 404, 132 Stat. at 5222, this change does not apply retroactively to him (an issue\\nwe thus need not reach). And Harmelin reserved this kind of “comparative analysis” between\\nsentences for the “rare case” in which defendants make a threshold showing that their sentence\\n\\f No. 18-5830 United States v. Potter Page 12\\n\\n\\nmay be grossly excessive under the Eighth Amendment. 501 U.S. at 1004–05 (Kennedy, J.,\\nconcurring in part and concurring in judgment). Potter has not made that showing. Id. He must\\nlook to the People’s representatives, not their judges, for any future relief.\\n\\n * * *\\n\\n We affirm Potter’s conviction and sentence.\"}]}"},"judge1":{"kind":"string","value":"MOORE"},"judge2":{"kind":"string","value":"SUTTON"},"judge3":{"kind":"string","value":"MURPHY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628338/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Michael J.W. POTTER, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0128p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │ No. 18-5830\n │\n v. │\n >\n │\n MICHAEL J.W. POTTER, │\n Defendant-Appellant. ┘\n\n Appeal from the United States District Court\n for the Eastern District of Tennessee at Greeneville.\n No. 2:17-cr-00012-3—J. Ronnie Greer, District Judge.\n\n Argued: May 2, 2019\n\n Decided and Filed: June 11, 2019\n\n Before: MOORE, SUTTON, and MURPHY, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC, Greeneville, Tennessee, for\nAppellant. Brian Samuelson, UNITED STATES ATTORNEY’S OFFICE, Knoxville,\nTennessee, for Appellee. ON BRIEF: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC,\nGreeneville, Tennessee, for Appellant. Brian Samuelson, J. Gregory Bowman, UNITED\nSTATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.\n _________________\n\n OPINION\n _________________\n\n MURPHY, Circuit Judge. An average “dose” of methamphetamine weighs between one-\ntenth and one-quarter of a gram. And there are 28.3 grams to an ounce. So Michael Potter\nconfessed to peddling a lot of doses of meth when he told police that he had sold some ten\npounds. To make matters worse for Potter, he had been convicted of seven prior drug offenses.\n\f No. 18-5830 United States v. Potter Page 2\n\n\nHis prior statements about his drug sales supported his conviction for a different conspiracy to\ndistribute methamphetamine that used similar methods. 21 U.S.C. §§ 841(a)(1), 846. His prior\ndrug offenses supported his mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii) (2012)\n(amended 2018).\n\n On appeal, Potter challenges his conviction and sentence. As for his conviction, he\nargues that the police elicited his statements after he invoked his right to an attorney under\nMiranda v. Arizona, 384 U.S. 436 (1966), and so violated the bright-line rule to stop questioning\nadopted by Edwards v. Arizona, 451 U.S. 477 (1981). As for his sentence, he argues that the\nEighth Amendment bars his mandatory term of life because the child-focused logic of Miller v.\nAlabama, 567 U.S. 460 (2012), should expand to cover adults who commit nonviolent offenses.\nWe disagree with Potter on both fronts, reject his remaining arguments, and affirm his conviction\nand sentence.\n\n I.\n\n In early 2015, Potter struck a deal with an acquaintance, Tammy Goodson, to make\nmoney by selling methamphetamine in east Tennessee. Goodson would introduce Potter to\nNathan Hogan, a Georgia meth supplier, and Potter would reciprocate by giving her a certain\namount of money and meth for each ounce he bought from Hogan. In the first half of 2015,\nPotter and Goodson twice drove to Georgia to buy between eight and ten ounces of meth from\nHogan (or his runner). After Goodson’s arrest, Potter made a third trip during which he bought\n20 ounces from Hogan. Upon each return to Tennessee, Potter went about selling the drugs.\nAbout this time, for example, Brandin Hyde contacted Potter in search of a new supplier. Potter\noffered Hyde an eventual price discount to undercut Potter’s “competition” if Hyde brought\nrepeat business his way. Yet Potter and Hyde completed just one transaction.\n\n That is because, on June 26, 2015, police arrested Potter on unrelated charges. That\nnight, he told police he did not want to talk. The next day, he changed his mind. After signing a\nMiranda waiver, he spoke with Agents Jason Roark and Shannon Russell from the Tennessee\nSecond Judicial District Drug Task Force. During this interrogation, Potter admitted that,\n\f No. 18-5830 United States v. Potter Page 3\n\n\nstarting in August 2014, he had bought about ten pounds of methamphetamine from a different\nGeorgia supplier (not Hogan) and sold it in east Tennessee.\n\n Shortly after his arrest, Potter asked his younger brother, Steven Hilliard, to collect debts\nfrom people who owed him. Hilliard recouped funds from several people, including $4,700 from\na person who owed Potter for meth purchases. At Potter’s urging, Hilliard also contacted Hogan\nto give him a heads up that Potter had been arrested. That call provided the spark that eventually\nled Hilliard to take his brother’s place in the distribution scheme. During the second half of\n2015, Hilliard traveled to Georgia to buy methamphetamine from Hogan using the money he had\ncollected for Potter. Potter was initially upset upon learning of this arrangement, but the brothers\nultimately agreed that Hilliard would reimburse Potter in full and pay Potter a “couple of\nhundred dollars” for each visit to see Hogan. Hilliard bought a pound or two of meth on each\ntrip.\n\n Potter remained in custody during this time, but renewed his distribution efforts soon\nafter his October 2016 release. He contacted Hogan via Facebook, leading to a four-ounce meth\npurchase. He later bought eight ounces from Hogan. In February 2017, Hogan had arranged to\nmeet Potter for another exchange, but police arrested Hogan on the day of the deal. Potter still\ncompleted the transaction through Hogan’s runner. Their transactions ended shortly thereafter.\nThe United States indicted Potter and twenty-four others—including Hogan, Goodson, and\nHilliard—for a conspiracy starting on or around January 2015 to distribute fifty grams or more of\nmethamphetamine.\n\n Before trial, Potter moved to suppress his statements to Agents Roark and Russell. At a\nsuppression hearing, he testified that he had asked for a lawyer many times during the interview,\nbut the agents ignored his requests. Russell disputed this account. He explained that Potter\nmentioned a lawyer and “may have” asked whether he needed one, but never requested an\nattorney or sought to stop the interrogation. The magistrate judge found Potter not credible, held\nthat his statements about an attorney did not require the police to end their questioning, and\nrecommended that the district court deny Potter’s motion. The district court adopted this\nrecommendation.\n\f No. 18-5830 United States v. Potter Page 4\n\n\n Potter stood trial. Hogan, Goodson, Hilliard, and Hyde, among others, described his drug\ndistribution. Roark and Russell also detailed Potter’s statements to them. The jury convicted\nPotter of the distribution conspiracy. 21 U.S.C. §§ 841(a)(1), 846. As this was his eighth felony\ndrug conviction, Potter received a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii)\n(2012) (amended 2018).\n\n II.\n\n Potter raises four objections. He asserts a constitutional, an evidentiary, and a sufficiency\nchallenge to his conspiracy conviction, and a constitutional challenge to his life sentence.\n\n 1. Fifth Amendment Objection. Potter starts off with the Fifth Amendment, which gives\nan individual the right not to “be compelled in any criminal case to be a witness against himself.”\nU.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court safeguarded this\nright by prescribing judicial rules of the road for officers who interrogate individuals in police\ncustody, including that the individuals have a right to an attorney during the inquiry. Id. at 473–\n74. Potter’s argument in this case concerns a second prophylaxis that the Court later adopted in\nEdwards v. Arizona, 451 U.S. 477 (1981), to protect the Miranda right to an attorney that\nprotects the Fifth Amendment right against self-incrimination. Edwards held that the police\nmust immediately cease questioning if a suspect invokes the Miranda right. Id. at 484–85. It\nthus invalidated a suspect’s waiver of the right because—even if knowingly and voluntarily\nmade—the waiver arose from questioning after a request for a lawyer. Id. at 487. Courts\nenforce Edwards’s “second layer of prophylaxis” through “the threat of suppression,” Davis v.\nUnited States, 512 U.S. 452, 458, 461 (1994) (internal quotation marks omitted), so much\ndepends on whether statements about an attorney trigger Edwards’s bright-line rule to stop\nquestioning. Here, for example, Potter argues that the district court should have suppressed his\nstatements about his distribution of ten pounds of methamphetamine because, contrary to\nEdwards, Roark and Russell obtained those statements after Potter had invoked his Miranda\nright.\n\n We begin with a question about the standard of review. Refusing to credit Potter’s\ntestimony that he had requested a lawyer many times, the magistrate judge (whose report the\n\f No. 18-5830 United States v. Potter Page 5\n\n\ndistrict court adopted) made several factual findings about what Potter told the agents. The judge\nthen held that Potter’s statements did not suffice to launch Edwards’s rule. We, of course,\nreview for clear error the district court’s fact findings about Potter’s credibility and what he said\nto the agents. United States v. Scott, 693 F.3d 715, 718 (6th Cir. 2012). And we, of course,\nreview legal questions de novo. Id. But where does the ultimate issue—whether a suspect’s\ncredited statements sufficiently invoked a right to counsel to trigger Edwards—fall on this law-\nversus-fact divide?\n\n We view it as a legal question (or at least a mixed question of law and fact) subject to\nde novo review. Circuit precedent supports that conclusion. See Van Hook v. Anderson, 488\nF.3d 411, 415 (6th Cir. 2007) (en banc); see also United States v. Wysinger, 683 F.3d 784, 793\n(7th Cir. 2012); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir. 2002) (en banc); Valdez v. Ward,\n219 F.3d 1222, 1232 (10th Cir. 2000). An analogy to the Supreme Court’s precedent does too.\nIn the Fourth Amendment context, the Supreme Court has told lower courts to review de novo\nthe ultimate question whether the historical circumstances (viewed from a reasonable officer’s\nperspective) created probable cause or reasonable suspicion. Ornelas v. United States, 517 U.S.\n690, 696–97 (1996). Its reasoning in that case, we think, covers the ultimate question in this case\nabout whether the historical statements (again viewed from a reasonable officer’s perspective,\nDavis, 512 U.S. at 458–59) sufficed to trigger Edwards.\n\n On to the merits. The Supreme Court in Davis set a high bar to trigger Edwards. To\ncompel officers to end questioning, a “suspect must unambiguously request counsel.” Davis,\n512 U.S. at 459. So “ambiguous or equivocal” requests for an attorney do not put reasonable\nofficers on notice that the interrogation must stop. Id. Davis explained its rationale for this\nstandard when responding to the argument that it might sometimes engender harsh results:\n“[T]he primary protection” for the Fifth Amendment, Davis said, “is the Miranda warnings\nthemselves.” Id. at 460. While Edwards added a second layer of judicial protection on top of\nthose warnings, Davis was “unwilling” to add a third one. Id. at 462. And Davis’s bottom-line\nholding—that a suspect who said “[m]aybe I should talk to a lawyer” did not unambiguously ask\nfor counsel—confirms that an individual must make a firm request (minus any ambivalent\nadverbs). Id.\n\f No. 18-5830 United States v. Potter Page 6\n\n\n Davis’s clear command has doomed several Edwards claims in our circuit. Take, for\nexample, the statement “I think I should talk to a lawyer, what do you think?” Was that an\nunambiguous request for counsel? No. United States v. Delaney, 443 F. App’x 122, 130 (6th\nCir. 2011). How about “‘[i]t would be nice’ to have an attorney”? Insufficient. Ledbetter v.\nEdwards, 35 F.3d 1062, 1070 (6th Cir. 1994); cf. Henness v. Bagley, 644 F.3d 308, 319–20 (6th\nCir. 2011). Or “I really should have a lawyer, huh?” Equivocal. United States v. Mays, 683\nF. App’x 427, 433 (6th Cir. 2017); see also United States v. Amawi, 695 F.3d 457, 484–85 (6th\nCir. 2012). For what it’s worth, other circuits have likewise rejected Edwards claims based on\nsimilar statements. E.g., United States v. Oquendo-Rivas, 750 F.3d 12, 19 (1st Cir. 2014);\nUnited States v. Havlik, 710 F.3d 818, 821–22 (8th Cir. 2013); Soffar, 300 F.3d at 594–95;\nUnited States v. Zamora, 222 F.3d 756, 765–66 (10th Cir. 2000); Burket v. Angelone, 208 F.3d\n172, 198 (4th Cir. 2000); Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996).\n\n We have, by contrast, found requests for an attorney unambiguous (triggering Edwards)\nwhen a suspect told the police that he wanted to be left alone “until I can see my attorney,”\nTolliver v. Sheets, 594 F.3d 900, 923 (6th Cir. 2010), or directed the police to “call his attorney’s\nphone number,” Moore v. Berghuis, 700 F.3d 882, 887 (6th Cir. 2012). We have even reached\nthat result when a person said “maybe I should talk to an attorney by the name of William\nEvans.” Abela v. Martin, 380 F.3d 915, 926–27 (6th Cir. 2004), abrogated on other grounds by\nGuilmette v. Howes, 624 F.3d 286 (6th Cir. 2010). Despite the “maybe” in this statement, we\nsaid that the surrounding circumstances—the suspect referred to a specific attorney, the suspect\nhanded the officer the attorney’s business card, and the officer said that he would call the\nattorney—turned what would otherwise be an equivocal request into an unambiguous one. Id.;\nsee Scott, 693 F.3d at 719–20.\n\n In which camp do Potter’s statements fall? They were just as equivocal as the statements\nfrom Davis, Delaney, or Ledbetter. The magistrate judge found as a historical fact that Potter, at\nmost, “may have mentioned an attorney.” Russell likewise testified that Potter “mentioned” an\nattorney and “may have . . . asked if he needed one.” But Potter “never requested to actually\nhave [an attorney] present” and “never once said that he wanted to stop” the interview to wait for\none. Nothing in these credited facts shows that Potter unambiguously requested counsel. The\n\f No. 18-5830 United States v. Potter Page 7\n\n\nmere mention of an attorney does not cut it. Davis, 512 U.S. at 459. Nor does a question about\nhaving an attorney. Delaney, 443 F. App’x at 130.\n\n Potter’s responses fall short. He largely (if impliedly) fights the district court’s\ncredibility findings without attempting to satisfy the clear-error standard. Potter, for example,\nsuggests that the agents violated Edwards because he “asked numerous questions about an\nAttorney and what one might recommend” he say (or not say) during this interrogation. That\nunderstanding of Potter’s statements comes from his own testimony. But the magistrate judge\nfound his “story” not credible because, among other reasons, Potter claimed that he had been\nlying to the agents and would have said anything to get out of jail.\n\n Potter also points out that, on the night before the interrogation, he told the agents he did\nnot wish to speak to them. That does not help him either. The agents honored his request, and it\nwas Potter who initiated the exchange with them the next day. Before that interrogation, Potter\nreceived Miranda warnings and signed a waiver stating that he understood his rights and was\n“willing to make a statement and answer questions without a lawyer present.” As the magistrate\njudge also found, Potter was “not interested in having an attorney present.” He wanted to talk to\nthe agents because “he wanted out of jail” and thought it would help his chances if he did so. All\ntold, the “circumstances surrounding” Potter’s statements cement our conclusion because they\nshow that the agents respected the Miranda right that Edwards’s rule seeks to protect and that\nPotter nevertheless opted to voluntarily speak with them. See Abela, 380 F.3d at 926.\n\n 2. Evidence Objection. Potter turns to the Federal Rules of Evidence to take a second\nswing at the admission of his statements. He argues that the district court should have sustained\nhis relevancy and prejudice objections (under Rules 402 and 403) because his statements\ndiscussed different actors (not individuals charged in the indictment) and an earlier time\n(beginning in August 2014, before the indictment’s January 2015 start date). This claim faces\nstiff standard-of-review headwinds. We review a district court’s decision to admit or exclude\nevidence for an abuse of discretion, leaving it “undisturbed unless we are left with the definite\nand firm conviction that the district court committed a clear error of judgment.” United States v.\nCleveland, 907 F.3d 423, 435–36 (6th Cir. 2018) (internal quotation marks omitted). No such\nerror occurred here.\n\f No. 18-5830 United States v. Potter Page 8\n\n\n Start with the relevance objection. Potter’s statements (that he had bought large amounts\nof meth in Georgia and resold it in Tennessee) had a “tendency to make” it “more . . . probable”\nthat he voluntarily joined the indicted conspiracy, which started at roughly the same time and\nfollowed roughly the same methods. Fed. R. Evid. 401(a). Indeed, as evidence experts have\nlong recognized, a prior “bad act” satisfies the relevancy test’s low bar even when used to show a\nperson’s propensity to commit the indicted crime. See Old Chief v. United States, 519 U.S. 172,\n180–82 (1997); 1 John H. Wigmore, Evidence in Trials at Common Law § 55, at 122–23 (1st ed.\n1904). That is why a separate rule—Rule 404(b)—prohibits that use of “bad acts” evidence and\nwhy most objections to this type of evidence invoke that rule. E.g., United States v. Hardy, 643\nF.3d 143, 151–52 (6th Cir. 2011). But Potter opted not to make a Rule 404(b) objection for\nstrategic reasons. Besides, the United States used Potter’s statements for reasons allowed by\nRule 404(b)(2), such as to prove his intent. See United States v. Alkufi, 636 F. App’x 323, 332\n(6th Cir. 2016).\n\n Turn to the prejudice objection. The district court properly balanced the “probative\nvalue” of Potter’s statements against any “unfair prejudice.” Fed. R. Evid. 403. His statements\nfare well under the “two factors” that our cases use to measure a prior act’s probative value: The\nconduct that Potter’s statements described was both similar to, and close in time with, the\nindicted conduct. See United States v. Asher, 910 F.3d 854, 860–61 (6th Cir. 2018). The district\ncourt’s limiting instruction about the narrow uses for this evidence also diminished any unfair\nprejudice by reducing the risk that the jury would put the evidence to an improper purpose. See\nUnited States v. Wright, 16 F.3d 1429, 1443 (6th Cir. 1994).\n\n 3. Sufficiency Objection. Potter next invokes Federal Rule of Criminal Procedure 29,\narguing that the United States presented insufficient evidence to sustain his conviction. While\nsubject to de novo review on appeal, this claim also must surmount a demanding legal standard:\nPotter must show that no “rational trier of fact could have found the essential elements of the\ncrime beyond a reasonable doubt.” United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006)\n(internal quotation marks omitted).\n\n To evaluate the evidence’s sufficiency, we must identify the “essential elements” of a\nconspiracy conviction under 21 U.S.C. § 846. Ever since United States v. Welch, 97 F.3d 142\n\f No. 18-5830 United States v. Potter Page 9\n\n\n(6th Cir. 1996), dozens of our cases have quoted (and requoted) three elements: “(1) an\nagreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3)\nparticipation in the conspiracy.” Id. at 148; United States v. Hines, 398 F.3d 713, 718 (6th Cir.\n2005). Yet the jury instructions in this case—following our circuit’s longstanding pattern jury\ninstructions, Sixth Circuit Pattern Criminal Jury Instruction 14.05(2) (Jan. 1, 2019)—identified\ntwo elements: (1) “that two or more persons conspired or agreed to distribute 50 grams or more\nof methamphetamine,” and (2) “that the defendant knowingly and voluntarily joined the\nconspiracy.” Conflict? We see it as a semantic difference. Cf. Hines, 398 F.3d at 718. The\n“participation” element cannot mean an “action” furthering the conspiracy because “proof of an\novert act is not required to establish a violation of 21 U.S.C. § 846.” United States v. Shabani,\n513 U.S. 10, 17 (1994). That is not what our cases meant by the term. As best we can tell, this\nelement dates back to United States v. Christian, 786 F.2d 203 (6th Cir. 1986), which used the\nword “participation” to distinguish joining the conspiracy (which our instructions require) with\n“[m]ere presence at the crime scene” (which our instructions find insufficient). Id. at 211. In\nthat sense, “participation” is synonymous with “joinder.” So whether phrased as two elements or\nthree, a conviction under § 846 requires an agreement to violate the drug laws, the defendant’s\nknowledge of the agreement, and the defendant’s decision to voluntarily join (or “participate in”)\nit.\n\n Could a rational jury find these elements met in Potter’s case? We think so. Ample\nevidence showed an agreement. Keep in mind that “[a]n agreement to violate the drug laws need\nnot be express or formal. A tacit or mutual understanding among the parties is sufficient.”\nUnited States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (internal quotation marks omitted).\nAnd such an agreement “can be inferred from repeated purchases of large quantities of drugs.”\nUnited States v. Sills, 662 F.3d 415, 417 (6th Cir. 2011). Here, Potter purchased\nmethamphetamine from Hogan on at least six occasions in distribution-level amounts (between\n4 and 20 ounces (113 to 566 grams)). Apart from these large transactions, coconspirators\ndescribed how they agreed with Potter to distribute meth. Goodson agreed to introduce him to\nHogan in exchange for money and drugs, and they implemented that deal by traveling to Georgia\nto make purchases. Likewise, Potter continued his distribution efforts from jail by agreeing to\nfront Hilliard funds to buy drugs from Hogan in exchange for a cut.\n\f No. 18-5830 United States v. Potter Page 10\n\n\n The evidence also could lead a rational jury to find § 846’s other elements—that Potter\nknowingly and voluntarily participated in (that is, joined) the conspiracy. Indeed, “once the\nexistence [of] a conspiracy is shown, the evidence linking an individual defendant to that\nconspiracy need only be slight.” Caver, 470 F.3d at 233. The jury could again rely on the\n“repeated purchases” and “large quantity of drugs” to infer Potter’s intentional participation. Id.\nNot only that, Potter’s warning to Hogan that he had been arrested and his speedy reconnection\nwith Hogan upon his release both confirm that he willingly sought to further the conspiracy’s\ndistribution goals.\n\n For his part, Potter asserts that this evidence established only a “buyer/seller” relationship\nbetween Hogan (seller) and Potter (buyer) and Potter (seller) and Hyde (buyer). True enough,\n“[a] buyer/seller relationship alone is not enough to establish participation in the conspiracy.”\nUnited States v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999). As noted, however, Potter’s “repeat”\ntransactions could lead a jury to find more than that insufficient relationship. United States v.\nBrown, 332 F.3d 363, 373 (6th Cir. 2003).\n\n 4. Eighth Amendment Objection. Potter ends with an attack on his sentence. At the time\nof his conduct, federal law imposed a mandatory life sentence for defendants who had two prior\nfelony drug convictions. 21 U.S.C. § 841(b)(1)(A)(viii) (2012) (amended 2018). Potter argues\nthat this sentence “inflict[s]” “cruel and unusual punishment[]” in violation of the Eighth\nAmendment. U.S. Const. amend. VIII. He asks us to extend the holding of Miller v. Alabama,\n567 U.S. 460 (2012)—that a mandatory life sentence for juveniles who commit murder violates\nthe Eighth Amendment, id. at 479—to adults who commit nonviolent crimes. This argument\nfaces insurmountable obstacles before this court.\n\n Potter’s initial obstacle is our court’s precedent. To determine whether a term of\nimprisonment for adults violates the Eighth Amendment, the Supreme Court has adopted a\n“‘narrow proportionality principle’” that requires a defendant to show that the term is grossly\ndisproportionate to the crime. Ewing v. California, 538 U.S. 11, 20, 23 (2003) (plurality op.)\n(quoting Harmelin v. Michigan, 501 U.S. 957, 997–98 (1991) (Kennedy, J., concurring in part\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Michael J.W. POTTER, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0128p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA, ┐\\n Plaintiff-Appellee, │\\n │ No. 18-5830\\n │\\n v. │\\n >\\n │\\n MICHAEL J.W. POTTER, │\\n Defendant-Appellant. ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee at Greeneville.\\n No. 2:17-cr-00012-3—J. Ronnie Greer, District Judge.\\n\\n Argued: May 2, 2019\\n\\n Decided and Filed: June 11, 2019\\n\\n Before: MOORE, SUTTON, and MURPHY, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC, Greeneville, Tennessee, for\\nAppellant. Brian Samuelson, UNITED STATES ATTORNEY’S OFFICE, Knoxville,\\nTennessee, for Appellee. ON BRIEF: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC,\\nGreeneville, Tennessee, for Appellant. Brian Samuelson, J. Gregory Bowman, UNITED\\nSTATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n MURPHY, Circuit Judge. An average “dose” of methamphetamine weighs between one-\\ntenth and one-quarter of a gram. And there are 28.3 grams to an ounce. So Michael Potter\\nconfessed to peddling a lot of doses of meth when he told police that he had sold some ten\\npounds. To make matters worse for Potter, he had been convicted of seven prior drug offenses.\\n\\f No. 18-5830 United States v. Potter Page 2\\n\\n\\nHis prior statements about his drug sales supported his conviction for a different conspiracy to\\ndistribute methamphetamine that used similar methods. 21 U.S.C. §§ 841(a)(1), 846. His prior\\ndrug offenses supported his mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii) (2012)\\n(amended 2018).\\n\\n On appeal, Potter challenges his conviction and sentence. As for his conviction, he\\nargues that the police elicited his statements after he invoked his right to an attorney under\\nMiranda v. Arizona, 384 U.S. 436 (1966), and so violated the bright-line rule to stop questioning\\nadopted by Edwards v. Arizona, 451 U.S. 477 (1981). As for his sentence, he argues that the\\nEighth Amendment bars his mandatory term of life because the child-focused logic of Miller v.\\nAlabama, 567 U.S. 460 (2012), should expand to cover adults who commit nonviolent offenses.\\nWe disagree with Potter on both fronts, reject his remaining arguments, and affirm his conviction\\nand sentence.\\n\\n I.\\n\\n In early 2015, Potter struck a deal with an acquaintance, Tammy Goodson, to make\\nmoney by selling methamphetamine in east Tennessee. Goodson would introduce Potter to\\nNathan Hogan, a Georgia meth supplier, and Potter would reciprocate by giving her a certain\\namount of money and meth for each ounce he bought from Hogan. In the first half of 2015,\\nPotter and Goodson twice drove to Georgia to buy between eight and ten ounces of meth from\\nHogan (or his runner). After Goodson’s arrest, Potter made a third trip during which he bought\\n20 ounces from Hogan. Upon each return to Tennessee, Potter went about selling the drugs.\\nAbout this time, for example, Brandin Hyde contacted Potter in search of a new supplier. Potter\\noffered Hyde an eventual price discount to undercut Potter’s “competition” if Hyde brought\\nrepeat business his way. Yet Potter and Hyde completed just one transaction.\\n\\n That is because, on June 26, 2015, police arrested Potter on unrelated charges. That\\nnight, he told police he did not want to talk. The next day, he changed his mind. After signing a\\nMiranda waiver, he spoke with Agents Jason Roark and Shannon Russell from the Tennessee\\nSecond Judicial District Drug Task Force. During this interrogation, Potter admitted that,\\n\\f No. 18-5830 United States v. Potter Page 3\\n\\n\\nstarting in August 2014, he had bought about ten pounds of methamphetamine from a different\\nGeorgia supplier (not Hogan) and sold it in east Tennessee.\\n\\n Shortly after his arrest, Potter asked his younger brother, Steven Hilliard, to collect debts\\nfrom people who owed him. Hilliard recouped funds from several people, including $4,700 from\\na person who owed Potter for meth purchases. At Potter’s urging, Hilliard also contacted Hogan\\nto give him a heads up that Potter had been arrested. That call provided the spark that eventually\\nled Hilliard to take his brother’s place in the distribution scheme. During the second half of\\n2015, Hilliard traveled to Georgia to buy methamphetamine from Hogan using the money he had\\ncollected for Potter. Potter was initially upset upon learning of this arrangement, but the brothers\\nultimately agreed that Hilliard would reimburse Potter in full and pay Potter a “couple of\\nhundred dollars” for each visit to see Hogan. Hilliard bought a pound or two of meth on each\\ntrip.\\n\\n Potter remained in custody during this time, but renewed his distribution efforts soon\\nafter his October 2016 release. He contacted Hogan via Facebook, leading to a four-ounce meth\\npurchase. He later bought eight ounces from Hogan. In February 2017, Hogan had arranged to\\nmeet Potter for another exchange, but police arrested Hogan on the day of the deal. Potter still\\ncompleted the transaction through Hogan’s runner. Their transactions ended shortly thereafter.\\nThe United States indicted Potter and twenty-four others—including Hogan, Goodson, and\\nHilliard—for a conspiracy starting on or around January 2015 to distribute fifty grams or more of\\nmethamphetamine.\\n\\n Before trial, Potter moved to suppress his statements to Agents Roark and Russell. At a\\nsuppression hearing, he testified that he had asked for a lawyer many times during the interview,\\nbut the agents ignored his requests. Russell disputed this account. He explained that Potter\\nmentioned a lawyer and “may have” asked whether he needed one, but never requested an\\nattorney or sought to stop the interrogation. The magistrate judge found Potter not credible, held\\nthat his statements about an attorney did not require the police to end their questioning, and\\nrecommended that the district court deny Potter’s motion. The district court adopted this\\nrecommendation.\\n\\f No. 18-5830 United States v. Potter Page 4\\n\\n\\n Potter stood trial. Hogan, Goodson, Hilliard, and Hyde, among others, described his drug\\ndistribution. Roark and Russell also detailed Potter’s statements to them. The jury convicted\\nPotter of the distribution conspiracy. 21 U.S.C. §§ 841(a)(1), 846. As this was his eighth felony\\ndrug conviction, Potter received a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii)\\n(2012) (amended 2018).\\n\\n II.\\n\\n Potter raises four objections. He asserts a constitutional, an evidentiary, and a sufficiency\\nchallenge to his conspiracy conviction, and a constitutional challenge to his life sentence.\\n\\n 1. Fifth Amendment Objection. Potter starts off with the Fifth Amendment, which gives\\nan individual the right not to “be compelled in any criminal case to be a witness against himself.”\\nU.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court safeguarded this\\nright by prescribing judicial rules of the road for officers who interrogate individuals in police\\ncustody, including that the individuals have a right to an attorney during the inquiry. Id. at 473–\\n74. Potter’s argument in this case concerns a second prophylaxis that the Court later adopted in\\nEdwards v. Arizona, 451 U.S. 477 (1981), to protect the Miranda right to an attorney that\\nprotects the Fifth Amendment right against self-incrimination. Edwards held that the police\\nmust immediately cease questioning if a suspect invokes the Miranda right. Id. at 484–85. It\\nthus invalidated a suspect’s waiver of the right because—even if knowingly and voluntarily\\nmade—the waiver arose from questioning after a request for a lawyer. Id. at 487. Courts\\nenforce Edwards’s “second layer of prophylaxis” through “the threat of suppression,” Davis v.\\nUnited States, 512 U.S. 452, 458, 461 (1994) (internal quotation marks omitted), so much\\ndepends on whether statements about an attorney trigger Edwards’s bright-line rule to stop\\nquestioning. Here, for example, Potter argues that the district court should have suppressed his\\nstatements about his distribution of ten pounds of methamphetamine because, contrary to\\nEdwards, Roark and Russell obtained those statements after Potter had invoked his Miranda\\nright.\\n\\n We begin with a question about the standard of review. Refusing to credit Potter’s\\ntestimony that he had requested a lawyer many times, the magistrate judge (whose report the\\n\\f No. 18-5830 United States v. Potter Page 5\\n\\n\\ndistrict court adopted) made several factual findings about what Potter told the agents. The judge\\nthen held that Potter’s statements did not suffice to launch Edwards’s rule. We, of course,\\nreview for clear error the district court’s fact findings about Potter’s credibility and what he said\\nto the agents. United States v. Scott, 693 F.3d 715, 718 (6th Cir. 2012). And we, of course,\\nreview legal questions de novo. Id. But where does the ultimate issue—whether a suspect’s\\ncredited statements sufficiently invoked a right to counsel to trigger Edwards—fall on this law-\\nversus-fact divide?\\n\\n We view it as a legal question (or at least a mixed question of law and fact) subject to\\nde novo review. Circuit precedent supports that conclusion. See Van Hook v. Anderson, 488\\nF.3d 411, 415 (6th Cir. 2007) (en banc); see also United States v. Wysinger, 683 F.3d 784, 793\\n(7th Cir. 2012); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir. 2002) (en banc); Valdez v. Ward,\\n219 F.3d 1222, 1232 (10th Cir. 2000). An analogy to the Supreme Court’s precedent does too.\\nIn the Fourth Amendment context, the Supreme Court has told lower courts to review de novo\\nthe ultimate question whether the historical circumstances (viewed from a reasonable officer’s\\nperspective) created probable cause or reasonable suspicion. Ornelas v. United States, 517 U.S.\\n690, 696–97 (1996). Its reasoning in that case, we think, covers the ultimate question in this case\\nabout whether the historical statements (again viewed from a reasonable officer’s perspective,\\nDavis, 512 U.S. at 458–59) sufficed to trigger Edwards.\\n\\n On to the merits. The Supreme Court in Davis set a high bar to trigger Edwards. To\\ncompel officers to end questioning, a “suspect must unambiguously request counsel.” Davis,\\n512 U.S. at 459. So “ambiguous or equivocal” requests for an attorney do not put reasonable\\nofficers on notice that the interrogation must stop. Id. Davis explained its rationale for this\\nstandard when responding to the argument that it might sometimes engender harsh results:\\n“[T]he primary protection” for the Fifth Amendment, Davis said, “is the Miranda warnings\\nthemselves.” Id. at 460. While Edwards added a second layer of judicial protection on top of\\nthose warnings, Davis was “unwilling” to add a third one. Id. at 462. And Davis’s bottom-line\\nholding—that a suspect who said “[m]aybe I should talk to a lawyer” did not unambiguously ask\\nfor counsel—confirms that an individual must make a firm request (minus any ambivalent\\nadverbs). Id.\\n\\f No. 18-5830 United States v. Potter Page 6\\n\\n\\n Davis’s clear command has doomed several Edwards claims in our circuit. Take, for\\nexample, the statement “I think I should talk to a lawyer, what do you think?” Was that an\\nunambiguous request for counsel? No. United States v. Delaney, 443 F. App’x 122, 130 (6th\\nCir. 2011). How about “‘[i]t would be nice’ to have an attorney”? Insufficient. Ledbetter v.\\nEdwards, 35 F.3d 1062, 1070 (6th Cir. 1994); cf. Henness v. Bagley, 644 F.3d 308, 319–20 (6th\\nCir. 2011). Or “I really should have a lawyer, huh?” Equivocal. United States v. Mays, 683\\nF. App’x 427, 433 (6th Cir. 2017); see also United States v. Amawi, 695 F.3d 457, 484–85 (6th\\nCir. 2012). For what it’s worth, other circuits have likewise rejected Edwards claims based on\\nsimilar statements. E.g., United States v. Oquendo-Rivas, 750 F.3d 12, 19 (1st Cir. 2014);\\nUnited States v. Havlik, 710 F.3d 818, 821–22 (8th Cir. 2013); Soffar, 300 F.3d at 594–95;\\nUnited States v. Zamora, 222 F.3d 756, 765–66 (10th Cir. 2000); Burket v. Angelone, 208 F.3d\\n172, 198 (4th Cir. 2000); Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996).\\n\\n We have, by contrast, found requests for an attorney unambiguous (triggering Edwards)\\nwhen a suspect told the police that he wanted to be left alone “until I can see my attorney,”\\nTolliver v. Sheets, 594 F.3d 900, 923 (6th Cir. 2010), or directed the police to “call his attorney’s\\nphone number,” Moore v. Berghuis, 700 F.3d 882, 887 (6th Cir. 2012). We have even reached\\nthat result when a person said “maybe I should talk to an attorney by the name of William\\nEvans.” Abela v. Martin, 380 F.3d 915, 926–27 (6th Cir. 2004), abrogated on other grounds by\\nGuilmette v. Howes, 624 F.3d 286 (6th Cir. 2010). Despite the “maybe” in this statement, we\\nsaid that the surrounding circumstances—the suspect referred to a specific attorney, the suspect\\nhanded the officer the attorney’s business card, and the officer said that he would call the\\nattorney—turned what would otherwise be an equivocal request into an unambiguous one. Id.;\\nsee Scott, 693 F.3d at 719–20.\\n\\n In which camp do Potter’s statements fall? They were just as equivocal as the statements\\nfrom Davis, Delaney, or Ledbetter. The magistrate judge found as a historical fact that Potter, at\\nmost, “may have mentioned an attorney.” Russell likewise testified that Potter “mentioned” an\\nattorney and “may have . . . asked if he needed one.” But Potter “never requested to actually\\nhave [an attorney] present” and “never once said that he wanted to stop” the interview to wait for\\none. Nothing in these credited facts shows that Potter unambiguously requested counsel. The\\n\\f No. 18-5830 United States v. Potter Page 7\\n\\n\\nmere mention of an attorney does not cut it. Davis, 512 U.S. at 459. Nor does a question about\\nhaving an attorney. Delaney, 443 F. App’x at 130.\\n\\n Potter’s responses fall short. He largely (if impliedly) fights the district court’s\\ncredibility findings without attempting to satisfy the clear-error standard. Potter, for example,\\nsuggests that the agents violated Edwards because he “asked numerous questions about an\\nAttorney and what one might recommend” he say (or not say) during this interrogation. That\\nunderstanding of Potter’s statements comes from his own testimony. But the magistrate judge\\nfound his “story” not credible because, among other reasons, Potter claimed that he had been\\nlying to the agents and would have said anything to get out of jail.\\n\\n Potter also points out that, on the night before the interrogation, he told the agents he did\\nnot wish to speak to them. That does not help him either. The agents honored his request, and it\\nwas Potter who initiated the exchange with them the next day. Before that interrogation, Potter\\nreceived Miranda warnings and signed a waiver stating that he understood his rights and was\\n“willing to make a statement and answer questions without a lawyer present.” As the magistrate\\njudge also found, Potter was “not interested in having an attorney present.” He wanted to talk to\\nthe agents because “he wanted out of jail” and thought it would help his chances if he did so. All\\ntold, the “circumstances surrounding” Potter’s statements cement our conclusion because they\\nshow that the agents respected the Miranda right that Edwards’s rule seeks to protect and that\\nPotter nevertheless opted to voluntarily speak with them. See Abela, 380 F.3d at 926.\\n\\n 2. Evidence Objection. Potter turns to the Federal Rules of Evidence to take a second\\nswing at the admission of his statements. He argues that the district court should have sustained\\nhis relevancy and prejudice objections (under Rules 402 and 403) because his statements\\ndiscussed different actors (not individuals charged in the indictment) and an earlier time\\n(beginning in August 2014, before the indictment’s January 2015 start date). This claim faces\\nstiff standard-of-review headwinds. We review a district court’s decision to admit or exclude\\nevidence for an abuse of discretion, leaving it “undisturbed unless we are left with the definite\\nand firm conviction that the district court committed a clear error of judgment.” United States v.\\nCleveland, 907 F.3d 423, 435–36 (6th Cir. 2018) (internal quotation marks omitted). No such\\nerror occurred here.\\n\\f No. 18-5830 United States v. Potter Page 8\\n\\n\\n Start with the relevance objection. Potter’s statements (that he had bought large amounts\\nof meth in Georgia and resold it in Tennessee) had a “tendency to make” it “more . . . probable”\\nthat he voluntarily joined the indicted conspiracy, which started at roughly the same time and\\nfollowed roughly the same methods. Fed. R. Evid. 401(a). Indeed, as evidence experts have\\nlong recognized, a prior “bad act” satisfies the relevancy test’s low bar even when used to show a\\nperson’s propensity to commit the indicted crime. See Old Chief v. United States, 519 U.S. 172,\\n180–82 (1997); 1 John H. Wigmore, Evidence in Trials at Common Law § 55, at 122–23 (1st ed.\\n1904). That is why a separate rule—Rule 404(b)—prohibits that use of “bad acts” evidence and\\nwhy most objections to this type of evidence invoke that rule. E.g., United States v. Hardy, 643\\nF.3d 143, 151–52 (6th Cir. 2011). But Potter opted not to make a Rule 404(b) objection for\\nstrategic reasons. Besides, the United States used Potter’s statements for reasons allowed by\\nRule 404(b)(2), such as to prove his intent. See United States v. Alkufi, 636 F. App’x 323, 332\\n(6th Cir. 2016).\\n\\n Turn to the prejudice objection. The district court properly balanced the “probative\\nvalue” of Potter’s statements against any “unfair prejudice.” Fed. R. Evid. 403. His statements\\nfare well under the “two factors” that our cases use to measure a prior act’s probative value: The\\nconduct that Potter’s statements described was both similar to, and close in time with, the\\nindicted conduct. See United States v. Asher, 910 F.3d 854, 860–61 (6th Cir. 2018). The district\\ncourt’s limiting instruction about the narrow uses for this evidence also diminished any unfair\\nprejudice by reducing the risk that the jury would put the evidence to an improper purpose. See\\nUnited States v. Wright, 16 F.3d 1429, 1443 (6th Cir. 1994).\\n\\n 3. Sufficiency Objection. Potter next invokes Federal Rule of Criminal Procedure 29,\\narguing that the United States presented insufficient evidence to sustain his conviction. While\\nsubject to de novo review on appeal, this claim also must surmount a demanding legal standard:\\nPotter must show that no “rational trier of fact could have found the essential elements of the\\ncrime beyond a reasonable doubt.” United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006)\\n(internal quotation marks omitted).\\n\\n To evaluate the evidence’s sufficiency, we must identify the “essential elements” of a\\nconspiracy conviction under 21 U.S.C. § 846. Ever since United States v. Welch, 97 F.3d 142\\n\\f No. 18-5830 United States v. Potter Page 9\\n\\n\\n(6th Cir. 1996), dozens of our cases have quoted (and requoted) three elements: “(1) an\\nagreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3)\\nparticipation in the conspiracy.” Id. at 148; United States v. Hines, 398 F.3d 713, 718 (6th Cir.\\n2005). Yet the jury instructions in this case—following our circuit’s longstanding pattern jury\\ninstructions, Sixth Circuit Pattern Criminal Jury Instruction 14.05(2) (Jan. 1, 2019)—identified\\ntwo elements: (1) “that two or more persons conspired or agreed to distribute 50 grams or more\\nof methamphetamine,” and (2) “that the defendant knowingly and voluntarily joined the\\nconspiracy.” Conflict? We see it as a semantic difference. Cf. Hines, 398 F.3d at 718. The\\n“participation” element cannot mean an “action” furthering the conspiracy because “proof of an\\novert act is not required to establish a violation of 21 U.S.C. § 846.” United States v. Shabani,\\n513 U.S. 10, 17 (1994). That is not what our cases meant by the term. As best we can tell, this\\nelement dates back to United States v. Christian, 786 F.2d 203 (6th Cir. 1986), which used the\\nword “participation” to distinguish joining the conspiracy (which our instructions require) with\\n“[m]ere presence at the crime scene” (which our instructions find insufficient). Id. at 211. In\\nthat sense, “participation” is synonymous with “joinder.” So whether phrased as two elements or\\nthree, a conviction under § 846 requires an agreement to violate the drug laws, the defendant’s\\nknowledge of the agreement, and the defendant’s decision to voluntarily join (or “participate in”)\\nit.\\n\\n Could a rational jury find these elements met in Potter’s case? We think so. Ample\\nevidence showed an agreement. Keep in mind that “[a]n agreement to violate the drug laws need\\nnot be express or formal. A tacit or mutual understanding among the parties is sufficient.”\\nUnited States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (internal quotation marks omitted).\\nAnd such an agreement “can be inferred from repeated purchases of large quantities of drugs.”\\nUnited States v. Sills, 662 F.3d 415, 417 (6th Cir. 2011). Here, Potter purchased\\nmethamphetamine from Hogan on at least six occasions in distribution-level amounts (between\\n4 and 20 ounces (113 to 566 grams)). Apart from these large transactions, coconspirators\\ndescribed how they agreed with Potter to distribute meth. Goodson agreed to introduce him to\\nHogan in exchange for money and drugs, and they implemented that deal by traveling to Georgia\\nto make purchases. Likewise, Potter continued his distribution efforts from jail by agreeing to\\nfront Hilliard funds to buy drugs from Hogan in exchange for a cut.\\n\\f No. 18-5830 United States v. Potter Page 10\\n\\n\\n The evidence also could lead a rational jury to find § 846’s other elements—that Potter\\nknowingly and voluntarily participated in (that is, joined) the conspiracy. Indeed, “once the\\nexistence [of] a conspiracy is shown, the evidence linking an individual defendant to that\\nconspiracy need only be slight.” Caver, 470 F.3d at 233. The jury could again rely on the\\n“repeated purchases” and “large quantity of drugs” to infer Potter’s intentional participation. Id.\\nNot only that, Potter’s warning to Hogan that he had been arrested and his speedy reconnection\\nwith Hogan upon his release both confirm that he willingly sought to further the conspiracy’s\\ndistribution goals.\\n\\n For his part, Potter asserts that this evidence established only a “buyer/seller” relationship\\nbetween Hogan (seller) and Potter (buyer) and Potter (seller) and Hyde (buyer). True enough,\\n“[a] buyer/seller relationship alone is not enough to establish participation in the conspiracy.”\\nUnited States v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999). As noted, however, Potter’s “repeat”\\ntransactions could lead a jury to find more than that insufficient relationship. United States v.\\nBrown, 332 F.3d 363, 373 (6th Cir. 2003).\\n\\n 4. Eighth Amendment Objection. Potter ends with an attack on his sentence. At the time\\nof his conduct, federal law imposed a mandatory life sentence for defendants who had two prior\\nfelony drug convictions. 21 U.S.C. § 841(b)(1)(A)(viii) (2012) (amended 2018). Potter argues\\nthat this sentence “inflict[s]” “cruel and unusual punishment[]” in violation of the Eighth\\nAmendment. U.S. Const. amend. VIII. He asks us to extend the holding of Miller v. Alabama,\\n567 U.S. 460 (2012)—that a mandatory life sentence for juveniles who commit murder violates\\nthe Eighth Amendment, id. at 479—to adults who commit nonviolent crimes. This argument\\nfaces insurmountable obstacles before this court.\\n\\n Potter’s initial obstacle is our court’s precedent. To determine whether a term of\\nimprisonment for adults violates the Eighth Amendment, the Supreme Court has adopted a\\n“‘narrow proportionality principle’” that requires a defendant to show that the term is grossly\\ndisproportionate to the crime. Ewing v. California, 538 U.S. 11, 20, 23 (2003) (plurality op.)\\n(quoting Harmelin v. Michigan, 501 U.S. 957, 997–98 (1991) (Kennedy, J., concurring in part\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2497,"cells":{"id":{"kind":"number","value":4628342,"string":"4,628,342"},"name":{"kind":"string","value":"Brian D. WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Brian Williams v. United States"},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"17-3211"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Moore, Merritt\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888700/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888701/\", \"author_raw\": \"\"}, {\"author\": \"KAREN NELSON MOORE, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0127p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n BRIAN D. WILLIAMS, ┐\\n Petitioner-Appellant, │\\n │\\n > No. 17-3211\\n v. │\\n │\\n │\\n UNITED STATES OF AMERICA, │\\n Respondent-Appellee. │\\n ┘\\n\\nOn Remand from the En Banc Court of the United States Court of Appeals for the Sixth Circuit.\\n United States District Court for the Northern District of Ohio at Cleveland.\\n Nos. 1:06-cr-00244-1; 1:16-cv-00520—Solomon Oliver Jr., District Judge.\\n\\n Decided and Filed: June 11, 2019\\n\\n Before: MERRITT, MOORE, and ROGERS, Circuit Judges.\\n\\n MOORE, J., delivered the opinion of the court in which MERRITT and ROGERS, JJ.,\\njoined. MERRITT, J. (pg. 24), delivered a separate concurring opinion.\\n _________________\\n\\n OPINION\\n _________________\\n\\n KAREN NELSON MOORE, Circuit Judge. This case returns to us on remand from our\\nen banc court in light of the en banc court’s decision in United States v. Burris, 912 F.3d 386\\n(6th Cir. 2019) (en banc). Since we last addressed Petitioner-Appellant Brian Williams’s\\ncollateral attack on his federal sentence under the Armed Career Criminal Act (“ACCA”),\\n18 U.S.C. § 924(e); see Williams v. United States, 875 F.3d 803 (6th Cir. 2017), and while\\ngranting Williams’s petition for rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), our court has\\nraised concerns regarding Williams’s ability to raise a cognizable motion for relief under\\n28 U.S.C. § 2255 in light of various provisions constraining collateral review. In this opinion,\\n\\n No. 17-3211 Williams v. United States Page 2\\n\\n\\nper the en banc court’s remand, we address those concerns in light of the comprehensive\\nargument before the en banc court and then proceed to address the merits of Williams’s motion\\nin light of Burris. Because Williams qualifies for review under § 2255 and because no ACCA\\nprovision justifies his sentence, we VACATE Williams’s sentence and REMAND for\\nresentencing.\\n\\n I. BACKGROUND\\n\\nA. Williams’s Conviction for Ohio Felonious Assault\\n\\n In early 2000, Williams was indicted for, pleaded guilty to, and was convicted of\\nattempted felonious assault in violation of Ohio Rev. Code § 2903.11(A). R. 39-3 (State\\nIndictment and Journal Entry) (Page ID #227–28); R. 48-1 (State Sentencing Tr. at 7–8, 11)\\n(Page ID #389–90, 393). Ohio Rev. Code § 2903.11(A) provides:\\n\\n No person shall knowingly do either of the following:\\n (1) Cause serious physical harm to another . . . ;\\n (2) Cause or attempt to cause physical harm to another . . . by means of a\\n deadly weapon or dangerous ordnance.\\n\\nOhio law in turn defines “serious physical harm,” as included in § 2903.11(A)(1), to include\\n“[a]ny mental illness or condition of such gravity as would normally require hospitalization or\\nprolonged psychiatric treatment.” Ohio Rev. Code § 2901.01(A)(5)(a). As Williams points out,\\nnone of the Shepard documents surrounding that conviction, see Shepard v. United States,\\n544 U.S. 13, 26 (2005), makes clear which of the two prongs of § 2903.11(A) Williams was\\nconvicted of having violated. Appellant’s Br. at 16.1 The Government does not dispute this\\ncharacterization of the Shepard documents.\\n\\nB. Williams’s Sentencing as an Armed Career Criminal\\n\\n In 2006, Williams was indicted for, pleaded guilty to, and was convicted of being a felon\\nin possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in the U.S. District Court for the\\nNorthern District of Ohio. R. 1 (Indictment) (Page ID #3–4); R. 19 (Judgment at 1) (Page ID\\n\\n 1We use this designation to reference the parties’ supplemental briefs before the en banc court. We use the\\nlonger designation “Appell[ant/ee]’s Panel Br.” to refer to the parties’ prior submissions to this panel.\\n\\n No. 17-3211 Williams v. United States Page 3\\n\\n\\n#39). The ACCA applied then (and continues to apply) to anyone convicted of violating\\n§ 922(g) who “has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1).\\nThe probation department recommended that Williams be sentenced as an armed career criminal\\nunder the ACCA, and the sentencing judge, Judge Dowd, agreed. See R. 18 (Sentencing Mem.\\nOp. at 4) (Page ID #37); R. 25 (Sentencing Tr. at 2) (Page ID #116); Presentence Report (“PSR”)\\nat 1, 7–8. Williams’s 2000 conviction for attempted felonious assault under Ohio Rev. Code\\n§ 2903.11(A) was one of the three prior convictions on which the probation department—and,\\nultimately, Judge Dowd—based this conclusion. See PSR at 1, 7–8; see also R. 1 (Indictment)\\n(Page ID #3–4).\\n\\n At the time, the ACCA defined “violent felony” to include any felony punishable by over\\none year of imprisonment that either:\\n\\n (i) has as an element the use, attempted use, or threatened use of physical force\\n against the person of another [“elements clause”]; or\\n (ii) is burglary, arson, or extortion, involves use of explosives [“enumerated-\\n crimes clause”], or otherwise involves conduct that presents a serious\\n potential risk of physical injury to another [“residual clause”] . . . .\\n\\n18 U.S.C. § 924(e)(2)(B). The parties agree that neither Judge Dowd nor probation specified the\\ngrounds on which Williams’s 2000 conviction qualified as an ACCA predicate and that nothing\\nelse in the sentencing record sheds further light. See Appellant’s Br. at 41; Appellee’s Br. at 5,\\n53. Williams was sentenced to 180 months in prison. R. 19 (Judgment at 2) (Page ID #40).\\n\\nC. Prior § 2255 Petitions and Intervening Legal Developments\\n\\n Williams soon began seeking postconviction relief. In 2007, he moved pro se to vacate\\nhis sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel, lack of federal\\njurisdiction for failure to satisfy the interstate-commerce element, and double jeopardy. R. 21\\n(2007 Mot. to Vacate at 4–7) (Page ID #55–58). The district court denied his motion. R. 29\\n(Dist. Ct. Op. & Order) (Page ID #185–87).\\n\\n In 2010, Williams again moved pro se to vacate his sentence under § 2255. In that\\nmotion, he maintained that § 924(e)(1) did “not apply to him,” arguing that at least one of his\\nprior convictions did not “fit the criteria for application [of the] 924(e)(1) enhancement” and\\n\\n No. 17-3211 Williams v. United States Page 4\\n\\n\\nciting the Supreme Court’s recent ruling that the ACCA’s “phrase ‘physical force’ means violent\\nforce.” See R. 31 (2010 Mot. to Vacate at 1–2) (Page ID #191–92); Curtis Johnson v. United\\nStates (“Johnson I”), 559 U.S. 133, 140 (2010). Williams also argued that the sentence imposed\\non him violated United States v. Booker, 543 U.S. 220 (2005), and his right to a jury trial. R. 31\\n(2010 Mot. to Vacate at 2–3) (Page ID #192–93). The district court transferred the motion to\\nthis court for authorization to file a second or successive motion, R. 32 (Transfer Order) (Page\\nID #195), and we denied Williams’s request, R. 33 (2010 CA6 Order) (Page ID #196–97).\\n\\n In 2012, a panel of our court ruled in United States v. Anderson, 695 F.3d 390 (6th Cir.\\n2012), that felonious assault under Ohio Rev. Code § 2903.11(A) qualifies as a violent felony\\nunder the ACCA’s elements clause. Id. at 402. The following year, a separate panel ruled that\\naggravated assault under Ohio Rev. Code § 2903.12(A), which is functionally “identical” to the\\nfelonious assault statute, Anderson, 695 F.3d at 402, qualifies as a violent felony under the\\nACCA’s residual clause. United States v. Perry, 703 F.3d 906, 910 (6th Cir. 2013). Our court\\ndid not cite Anderson in that decision.\\n\\n In 2013, Williams again sought authorization from our court to file a second or\\nsuccessive motion under § 2255, “seeking to pursue the following grounds for relief:\\n(1) ineffective assistance of counsel during plea bargaining; and (2) the unconstitutional\\napplication of 18 U.S.C. § 922(g)(1) to his case.” R. 34 (2013 CA6 Order) (Page ID #199–200).\\nWe again denied his request. Id. (2013 CA6 Order at 2) (Page ID #200).\\n\\n In 2014, Williams filed a third pro se motion in the district court under § 2255. R. 35\\n(2014 Mot. to Vacate at 1) (Page ID #201). In that motion, Williams argued that Descamps v.\\nUnited States, 570 U.S. 254 (2013), was retroactive and had established that his having been\\nsentenced under the ACCA was “in conflict with the jury trial right as explained in Apprendi v.\\nNew Jersey, 530 U.S. 466 (2000).” R. 35 (2014 Mot. to Vacate at 1) (Page ID #201). The\\ndistrict court denied his motion. R. 36 (Dist. Ct. Order at 2) (Page ID #206).\\n\\nD. Johnson II and the § 2255 Petition at Issue Here\\n\\n In June 2015, in Samuel Johnson v. United States (“Johnson II”), 135 S. Ct. 2551 (2015),\\nthe Supreme Court ruled that the residual clause of the ACCA was unconstitutionally vague. Id.\\n\\n No. 17-3211 Williams v. United States Page 5\\n\\n\\nat 2557. In March 2016, this time represented by counsel, Williams moved (again in the district\\ncourt) to vacate his sentence under § 2255 in light of the Supreme Court’s due-process-based\\nruling in Johnson II. R. 39 (2016 Mot. to Vacate at 1, 3) (Page ID #210, 212). That April, the\\nSupreme Court clarified that Johnson II was “a substantive decision and so has retroactive effect\\n. . . in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1265 (2016). The\\ndistrict court, meanwhile, transferred Williams’s § 2255 motion to this court, R. 42 (Transfer\\nOrder) (Page ID #240–41), and this court, noting that “much has changed in the four years since\\nwe decided Anderson,” granted Williams authorization, R. 43 (2016 CA6 Order at 4, 6) (Page ID\\n#245, 247). Both we and the district court, however, rejected Williams’s claim on the merits,\\nreasoning that Anderson had not been abrogated and thus remained controlling, regardless of its\\nultimate wisdom. See Williams, 875 F.3d at 807 (opinion of Rogers, J.); id. (Moore, J.,\\nconcurring in the judgment); R. 49 (Dist. Ct. Order at 14) (Page ID #410). Our court granted\\nrehearing en banc, 882 F.3d 1169 (6th Cir. 2018), and later issued letters directing the parties to\\naddress in their briefing the court’s ability to entertain Williams’s clearly second-in-time—and\\npotentially duplicative—motion for postconviction relief under § 2255. See Doc. 33 (Letter of\\nMar. 9, 2018); Doc. 34 (Letter of Mar. 20, 2018). Oral argument was heard by the en banc court\\non June 13, 2018, during which time we probed both parties further on the issues raised by our\\nbriefing letters.\\n\\n That same day, we also heard oral argument en banc in Burris, in which we probed in\\nmore detail whether felonious assault under Ohio Rev. Code § 2903.11(A)(1) qualifies as a\\nviolent felony under the ACCA or (for our purposes identical) elements clause of the United\\nStates Sentencing Guidelines (“Guidelines” or “U.S.S.G”). Compare U.S.S.G. § 4B1.2(a)(1),\\nwith 18 U.S.C. § 924(e)(2)(B)(i). In our recently released Burris decision, the en banc court\\nreasoned that Ohio Rev. Code § 2903.11(A)(1) is a categorical mismatch with the ACCA’s and\\nGuidelines’ elements clauses, notwithstanding Anderson. Following that decision, the en banc\\ncourt in this (Williams) case ruled that Anderson has been overruled and remanded this case to\\nour panel for further proceedings in light of that determination. We thus proceed to consider\\nWilliams’s case.\\n\\n No. 17-3211 Williams v. United States Page 6\\n\\n\\n II. DISCUSSION\\n\\n This case on remand requires us to consider (1) whether Williams is entitled to\\nconsideration of his claims on collateral review and, if he is, (2) whether he is in fact entitled to\\nrelief. Answering both questions in the affirmative, we VACATE Williams’s sentence and\\nREMAND for resentencing.\\n\\nA. AEPDA\\n\\n The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.\\n104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code), was\\nenacted “to further the principles of comity, finality, and federalism.” Williams v. Taylor,\\n529 U.S. 420, 436 (2000). In order to do that, AEDPA plainly “restrict[ed] the availability of\\nrelief to habeas petitioners” in general, Felker v. Turpin, 518 U.S. 651, 664 (1996), and it\\n“greatly restrict[ed] the power of federal courts to award relief to state prisoners who file second\\nor successive habeas corpus applications,” Tyler v. Cain, 533 U.S. 656, 661 (2001).\\nNevertheless, despite its clear goals, “in a world of silk purses and pigs’ ears, the Act is not a silk\\npurse of the art of statutory drafting.” Lindh v. Murphy, 521 U.S. 320, 336 (1997).\\n\\n One provision, 28 U.S.C. § 2254, applies to prisoners in state custody; another applies to\\nprisoners in federal custody, 28 U.S.C. § 2255. A third section, 28 U.S.C. § 2244, provides\\nbroader guidance. For one, that section allows federal judges to dismiss duplicative habeas\\nclaims brought by federal prisoners that have already been adjudicated on the merits by a federal\\ncourt, but it includes the express caveat “except as provided in section 2255.” Id. § 2244(a); see\\nalso In re Hanserd, 123 F.3d 922, 930 (6th Cir. 1997). Second, it states that “[a] claim presented\\nin a second or successive habeas corpus application under section 2254 that was presented in a\\nprior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Third, it mandates that prisoners\\nseeking to file a “second or successive” habeas application first obtain “an order authorizing the\\ndistrict court to consider the application,” id. § 2244(b)(3)(A), and it sets out the procedures for\\nobtaining such authorization, id. § 2244(b)(3)(A)–(D). Fourth, it requires district courts to\\n“dismiss any claim presented in a second or successive application that the court of appeals has\\n\\n No. 17-3211 Williams v. United States Page 7\\n\\n\\nauthorized to be filed unless the applicant shows that the claim satisfies the requirements of this\\nsection.” Id. § 2244(b)(4).\\n\\n Section 2255, meanwhile, refers back to § 2244 in applying the following provision to\\nfederal prisoners:\\n\\n A second or successive motion must be certified as provided in section 2244 by a\\n panel of the appropriate court of appeals to contain—\\n\\n (1) newly discovered evidence . . . or\\n (2) a new rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable.\\n\\n28 U.S.C. § 2255(h). The threshold issue in this case is whether our court is permitted to\\nadjudicate Williams’s claim in light of these provisions.\\n\\nB. Jurisdiction\\n\\n “[F]ederal courts have an independent obligation to ensure that they do not exceed the\\nscope of their jurisdiction, and therefore [we] must raise and decide jurisdictional questions that\\nthe parties either overlook or elect not to press.” Henderson v. Shinseki, 562 U.S. 428, 434\\n(2011); see also Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir. 1998).\\nHere, the en banc court did raise such jurisdictional issues, see Doc. 33 (Letter of Mar. 9, 2018);\\nDoc. 34 (Letter of Mar. 20, 2018), and they were argued before the en banc court. For its part,\\nthe Government conceded that none of the AEDPA provisions at issue here is jurisdictional.\\nAppellee’s Br. at 27 & n.6, 38. The Government’s reasoning is helpful and persuasive, but we\\n“have an independent obligation to” ensure our own jurisdiction, see Henderson, 562 U.S. at\\n434; Douglas, 150 F.3d at 607, and jurisdiction is not the kind of thing that can be waived or\\nforfeited, Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017); Mitchell v.\\nMaurer, 293 U.S. 237, 244 (1934).\\n\\n We now address the threshold statutory questions that were argued before the en banc\\ncourt and conclude that there is no threshold defect here. Two AEDPA provisions raise potential\\nsuch concerns: § 2244(b)(1) (“A claim presented in a second or successive habeas corpus\\napplication under section 2254 that was presented in a prior application shall be dismissed.”),\\n\\n No. 17-3211 Williams v. United States Page 8\\n\\n\\nand § 2255(h) (“A second or successive motion must be certified as provided in section 2244 by\\na panel of the appropriate court of appeals to contain (1) newly discovered evidence . . . or (2) a\\nnew rule of constitutional law . . . .”).2 We conclude that § 2244(b)(1) does not apply to a federal\\nprisoner like Williams3 and that the substantive requirements of § 2255(h) are nonjurisdictional.4\\n\\n 1. Section 2244(b)(1)\\n\\n With regard to § 2244(b)(1), we start and end with the text. Section § 2244(b)(1) reads:\\n“A claim presented in a second or successive habeas corpus application under section 2254 that\\nwas presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1) (emphasis\\nadded). In other words, “[t]he limitations imposed by § 2244(b) apply only to a ‘habeas corpus\\napplication under § 2254,’ that is, an ‘application for a writ of habeas corpus on behalf of a\\nperson in custody pursuant to the judgment of a State court.’” Magwood v. Patterson, 561 U.S.\\n320, 332 (2010) (quoting § 2254(b)(1) (emphasis shifted)); see also Gonzalez v. Crosby,\\n545 U.S. 524, 528 (2005) (“A state prisoner may not file [a second or successive habeas]\\npetition without precertification by the court of appeals that the petition meets stringent criteria.”\\n(citing § 2244(b) (emphasis added)). As the Government concedes, Appellee’s Br. at 23–27, and\\nas Williams points out, Appellant’s Br. at 18–25, this statutory language makes clear that it does\\nnot apply to federal prisoners like Williams who are seeking relief under § 2255—a reading that\\nis underscored by the fact that Congress clearly knew how to refer to federal prisoners (or all\\napplicants) when it wanted to do so. See 28 U.S.C. § 2244(a); id. § 2244(b)(3)(A); see also\\nHenson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[U]sually at least,\\nwhen we’re engaged in the business of interpreting statutes we presume differences in language\\nlike this convey differences in meaning.”). The Government and Williams are not alone in their\\n\\n\\n 2In a sense, § 2244(b)(4) (“A district court shall dismiss any claim presented in a second or successive\\napplication that the court of appeals has authorized to be filed unless . . . the claim satisfies the requirements of this\\nsection.”) also raises possible jurisdictional concerns. We discuss below why it does not in fact have jurisdictional\\neffect here.\\n 3We need not address whether the language of § 2244(b)(1) is itself jurisdictional.\\n 4We offer no opinion either on whether the procedural beginning of § 2255(h) (“[A] second or successive\\nmotion must be certified as provided in section 2244 by a panel of the appropriate court of appeals . . . .”) is\\njurisdictional. Because Williams has secured such authorization, see R. 43 (2016 CA6 Order at 6) (Page ID #247),\\nhe has satisfied that requirement, and thus any opinion on this question would be dicta.\\n\\n No. 17-3211 Williams v. United States Page 9\\n\\n\\njoint reading: other circuit courts have at least gestured in this direction too. See Moore v.\\nUnited States, 871 F.3d 72, 78 (1st Cir. 2017); United States v. Winestock, 340 F.3d 200, 204–\\n05, 208 (4th Cir. 2003); Stanko v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010).\\n\\n The main argument against this reading of § 2244(b)(1)’s plain text is that § 2255(h)\\nrefers to § 2244 when it states that “[a] second or successive motion must be certified as\\nprovided in section 2244 by a panel of the appropriate court of appeals to contain” one of the two\\nthreshold conditions. 28 U.S.C. § 2255(h); see Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.\\n2002) (“Although § 2244 refers to § 2254 rather than § 2255, we have held that the cross-\\nreference to § 2244 in § 2255[(h)] means that it is equally applicable to § 2255 motions.” (citing\\nBennett v. United States, 119 F.3d 468 (7th Cir. 1997))). But as Williams observes, Appellant’s\\nBr. at 24 n.7, § 2255(h)’s reference to § 2244’s certification requirement is much more sensibly\\nread as referring to the portions of § 2244 that actually concern the certification procedures, see\\n28 U.S.C. § 2244(b)(3)—the provisions, in other words, that “provide[]” for how such a “motion\\n[is to] be certified,” see id. § 2255(h). By contrast, it makes no linguistic sense to direct a court\\nto “certif[y] as provided in section 2244[(b)(1)]” that a motion contains the threshold conditions\\ndiscussed in § 2255(h); what makes linguistic sense is to direct a court to certify that those\\npreconditions are met in accordance with the procedures laid out in § 2244(b)(3).5 There is,\\naccordingly, “no reason to doubt that in” including the restrictive clause referring exclusively to\\nstate prisoners in § 2244(b)(1), “Congress said what it meant and meant what it said.” Loughrin\\nv. United States, 134 S. Ct. 2384, 2391 (2014).\\n\\n It bears noting that two published cases from our court have suggested (though without\\nany explanation) that § 2244(b)(1) does apply in § 2255 cases. See Charles v. Chandler,\\n180 F.3d 753, 758 (6th Cir. 1999) (per curiam); In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013)\\n(citing Charles). These statements do not, however, bind us. That is because, while we may not\\n\\n 5Perhaps understandably, then, the Seventh Circuit case from which that circuit adopted the wholesale\\nimportation of § 2244(b) into § 2255 was one that focused on the procedural requirements expressed in\\n§ 2244(b)(3). See Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997) (“We take the phrase ‘as provided in\\nsection 2244,’ which appears in section 2255, to mean that in considering an application under section 2255 for\\npermission to file a second or successive motion we should use the section 2244 standard, and thus insist only on a\\nprima facie showing of the motion’s adequacy [under § 2244(b)(3)(C)].”). It is not clear that the Seventh Circuit\\never interrogated its later interpretation of that logic as extending to cover § 2244(b)(1) despite that subsection’s\\nglaring textual red flag. See, e.g., Taylor, 314 F.3d at 836.\\n\\n No. 17-3211 Williams v. United States Page 10\\n\\n\\noverrule the holding of a prior published case, see Salmi v. Sec’y of Health & Human Servs.,\\n774 F.2d 685, 689 (6th Cir. 1985), “dictum in a prior decision—as opposed to a holding—does\\nnot bind future panels,” In re Campbell, 874 F.3d 454, 464 (6th Cir.), cert. denied, 138 S. Ct. 466\\n(2017). And neither of those two cases held that § 2244(b)(1) was applicable because neither\\ncited the provision for a proposition that was “necessary to the outcome.” See id. (observing\\n“that statements which are ‘not necessary to the outcome’ are [not holdings and thus] not binding\\non later panels” (quoting United States v. Turner, 602 F.3d 778, 785–86 (6th Cir. 2010)));\\nCharles, 180 F.3d at 758 (stating that the federal petitioner was “not entitled to file a successive\\n§ 2255 motion to vacate because he seeks permission to file the same claims that have already\\nbeen denied on the merits,” but then ruling that petitioner had not, “[i]n any event, . . . made a\\nprima facie showing of satisfying either one of the two criteria listed in § 2255”); Liddell,\\n722 F.3d at 738 (stating that a successive claim would be “barred” but that the federal movant\\nhad in any event failed to satisfy § 2255(h)).\\n\\n Meanwhile, although at least one other circuit has found § 2244(b)(1) to be applicable to\\n§ 2255 movants on policy grounds, see In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016)\\n(“Although § 2244(b)(1) explicitly applies to petitions filed under § 2254, which applies to state\\nprisoners, it would be odd indeed if Congress had intended to allow federal prisoners to refile\\nprecisely the same non-meritorious motions over and over again while denying that right to state\\nprisoners.”), the Government is correct, see Appellee’s Br. at 27, that such a reading is an\\nunjustifiable contravention of plain statutory text. See, e.g., Mohamad v. Palestinian Auth.,\\n566 U.S. 449, 460 (2012) (“[N]o legislation pursues its purposes at all costs, and petitioners’\\npurposive argument simply cannot overcome the force of the plain text.” (citation and internal\\nquotation marks omitted)).6 We therefore hold that § 2244(b)(1) does not apply to federal\\nprisoners like Williams seeking relief under § 2255.\\n\\n\\n 6Even allowing that a truly “absurd” result could justify such a textual departure, see, e.g., Hartford\\nUnderwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000), the result here is not so outlandish. AEDPA,\\nafter all, was enacted “to further the principles of comity, finality, and federalism,” Williams v. Taylor, 529 U.S. at\\n436, and two of those three considerations fall aside when it comes to federal prisoners, whose cases implicate no\\nseparate sovereign. Because it is not absurd to understand Congress as having intended to provide a marginally less\\nrestrictive regime for federal prisoners (whose § 2255 motions threaten no comity or federalism interests), we accept\\nthat “Congress said what it meant and meant what it said” when it drafted § 2244(b)(1). Loughrin, 134 S. Ct. at\\n2391.\\n\\n No. 17-3211 Williams v. United States Page 11\\n\\n\\n 2. Section 2255(h)\\n\\n Section 2255(h), by contrast, clearly does apply to a federal prisoner like Williams. The\\nquestion, then, is whether its substantive requirements pose any jurisdictional bar. “A rule is\\njurisdictional ‘[i]f the Legislature clearly states that a threshold limitation on a statute’s scope\\nshall count as jurisdictional.’” Gonzalez v. Thaler, 565 U.S. 134, 141–42 (2012) (alteration in\\noriginal) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)). Understandably, then,\\ncourts generally look first to whether “[t]he terms of the provision” clearly indicate “that the\\nprovision was meant to carry jurisdictional consequences,” but they may also look to factors like\\na provision’s “placement within the” statute and “the singular characteristics of the review\\nscheme that Congress created,” which reflect the statute’s purpose. See Henderson, 562 U.S. at\\n438–40; accord Gonzalez v. Thaler, 565 U.S. at 143–44 (looking to statutory text, operation, and\\npurpose).\\n\\n Williams rightly identifies that the closest analogy for this question is to Gonzalez v.\\nThaler, in which the Supreme Court analyzed the highly comparable interplay between 28\\nU.S.C. § 2253’s certificate-of-appealability (COA) provisions. See 565 U.S. at 137; 28 U.S.C.\\n§ 2253(c). There, the Court explained, “the only ‘clear’ jurisdictional language in § 2253(c)\\nappears in § 2253(c)(1),” which provides that “an appeal may not be taken” in the absence of a\\nCOA. Gonzalez v. Thaler, 565 U.S. at 142 (quoting 28 U.S.C. § 2253(c)(1)). “The parties” had\\n“agreed . . . for good reason,” meanwhile, that § 2253(c)(2), which “speaks only to when a COA\\nmay issue—upon ‘a substantial showing of the denial of a constitutional right,’” was non-\\njurisdictional. Id. at 143 (quoting 28 U.S.C. § 2253(c)(2)). In addition to noting that\\n§ 2253(c)(2) lacked “§ 2253(c)(1)’s jurisdictional terms,” the Court explained, “it would be\\npassing strange if, after a COA has issued, each court of appeals adjudicating an appeal were\\ndutybound to revisit the threshold showing and gauge its ‘substantial[ity]’ to verify its\\njurisdiction.” Id. (alteration in original). “That inquiry would be largely duplicative of the\\nmerits question before the court.” Id.\\n\\n No. 17-3211 Williams v. United States Page 12\\n\\n\\n The Court then concluded that § 2253(c)(3) was similarly non-jurisdictional, because\\n“[l]ike § 2253(c)(2), it too reflects a threshold condition for the issuance of a COA,” and “does\\nnot speak in jurisdictional terms.” Id. (citation omitted). The contrast between provisions like\\n§ 2253(c)(1) and the other two subsections “underscore[d]” that “[a] defective COA is not\\nequivalent to the lack of any COA.” Id. Moreover, the Court explained, it was “telling . . . that\\nCongress placed the power to issue COAs in the hands of a ‘circuit justice or judge’” and that the\\ncorresponding requirement “binds only the judge issuing the COA”—which “would only\\ncompound the ‘unfai[r] prejudice resulting from the sua sponte dismissals and remands that\\njurisdictional treatment would entail.” Id. at 143–44 (alteration in original) (quoting Henderson,\\n562 U.S. at 434). And it would, for that matter, “thwart Congress’s intent in AEDPA ‘to\\neliminate delays in the federal habeas review process’” to require stage-by-stage vigilance\\nregarding satisfaction of the COA threshold conditions, given that “[e]ven if additional screening\\nof already-issued COAs for § 2253(c)(3) defects could further winnow the cases before the\\ncourts of appeals, that would not outweigh the costs of further delay from the extra layer of\\nreview.” Id. at 144–45.\\n\\n As Williams notes, obtaining authorization to file a second or successive § 2255 motion\\nmaps onto this analysis tightly:\\n\\n Just as the requirement of first obtaining a COA is jurisdictional, so too is the\\n requirement that a movant obtain authorization from the court of appeals before\\n filing a second or successive § 2255 motion in the district court. Furthermore,\\n just as §§ 2253(c)(2) and (3) are not jurisdictional because they merely describe\\n when a COA may issue and what the COA should contain, §§ 2255(h)(1) and (2)\\n are not jurisdictional either.\\n\\nAppellant’s Br. at 34; see 28 U.S.C. § 2255(h)(1)–(2). Similarly, the only obligation that\\n§ 2255(h) places on the movant is seeking authorization; assessing the § 2255(h) threshold\\nconditions themselves is wholly committed to the issuing “panel of the appropriate court of\\nappeals.” See id. (“A second or successive motion must be certified as provided in section 2244\\nby a panel of the appropriate court of appeals to contain . . . .”). It would thus run afoul of the\\ntext’s focus on the issuing panel, impose substantial added delay contrary to Congress’s purpose,\\nand risk unfair prejudice to movants who had fully complied with their own obligations to\\nrequire each later panel to recommence review of the § 2255(h) threshold conditions.\\n\\n No. 17-3211 Williams v. United States Page 13\\n\\n\\nWe therefore hold, consistent with Gonzalez v. Thaler, that “[a] defective [authorization] is not\\n[jurisdictionally] equivalent to the lack of any [authorization].” See 565 U.S. at 143. Thus (as\\nthe Government concedes, Appellee’s Br. at 38), because any shortcomings in Williams’s\\nsatisfaction of the § 2255(h) threshold conditions were not jurisdictional, invocation of any such\\ndefect was susceptible to forfeiture. See, e.g., Hamer, 138 S. Ct. at 17.\\n\\n 3. Section 2244(b)(4)\\n\\n The one possible counterpoint to this analysis is § 2244(b)(4). That subsection, as noted\\nabove, provides that “[a] district court shall dismiss any claim presented in a second or\\nsuccessive application that the court of appeals has authorized to be filed unless the applicant\\nshows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4).\\nAlthough the Government does not read it this way, Doc. 48 (Appellee’s Letter of June 14, 2018,\\nat 2), the provision could arguably be read as requiring post-authorization vigilance in a way that\\nwould connote jurisdictionality.\\n\\n There are at least two reasons that § 2244(b)(4) does not impose its own jurisdictional bar\\nin this case. First, as the Government correctly observes, see id., the provision does not “clearly\\nstate[]” a jurisdictional bar, Gonzalez v. Thaler, 565 U.S. at 141 (citation omitted), particularly\\ngiven its focus on a single decisionmaker’s review, at a particular stage, of “a threshold\\ncondition,” see id. at 143. “And the fact that dismissal is ‘mandatory’ likewise does not change\\nthe nonjurisdictional character of this provision.” Doc. 48 (Appellee’s Letter of June 14, 2018,\\nat 2) (quoting Henderson, 562 U.S. at 439); see also Thaler, 565 U.S. at 146 (“This Court,\\nmoreover, has long ‘rejected the notion that “all mandatory prescriptions, however emphatic are\\n. . . properly typed jurisdictional.”’” (quoting Henderson, 562 U.S. at 439)). Rather, “[i]f\\nproperly invoked, mandatory claim-processing rules must be enforced, but they may be waived\\nor forfeited.” Hamer, 138 S. Ct. at 17. Thus, any failure by or before the district court would at\\nleast be waivable and forfeitable; it would not divest us of jurisdiction on appeal.\\n\\n Second, even if we understand that provision as outlasting the district court’s\\ninvolvement in the case and being (when properly raised) “reviewable on appeal in the ordinary\\ncourse” see, e.g., Holt v. United States, 843 F.3d 720, 723 (7th Cir. 2016), any jurisdictional\\n\\n No. 17-3211 Williams v. United States Page 14\\n\\n\\nconcerns are subsumed by the provisions we have already discussed. That is because the\\n“requirements of this section” that could conceivably be at issue, see 28 U.S.C. § 2244(b)(4), are\\neither those expressed in § 2244 itself—which are either procedurally satisfied or inapplicable—\\nor, via § 2244(a) (“No circuit or district judge shall be required to entertain an application . . .\\nexcept as provided in section 2255.”), the requirements in § 2255, which are either procedurally\\nsatisfied or nonjurisdictional. Thus, because those provisions do not otherwise raise a\\njurisdictional problem in this case, neither does § 2244(b)(4). We therefore hold that\\n§ 2244(b)(4) does not impose a jurisdictional bar on a federal prisoner like Williams seeking\\nrelief under § 2255 either.\\n\\nC. Whether Williams Is Entitled to Raise a Second or Successive Motion\\n\\n Just because a provision is not jurisdictional, of course, does not mean that it is\\ncompletely discretionary. Instead, as the Government notes, the AEDPA provisions that apply to\\nWilliams are “better understood as . . . mandatory claim-processing rule[s].” See Appellee’s Br\\nat 27 n.6. Such rules may, by their nature, “be waived or forfeited,” Hamer, 138 S. Ct. at 17,\\nand, as the Government acknowledges, it “did not raise these procedural impediments below or\\nbefore the panel,” Appellee’s Br. at 38; see also R. 41 (Gov’t’s Response to § 2255 Mot.) (Page\\nID #230–39); R. 45 (Gov’t’s Supp. Response) (Page ID #354–60); Appellee’s Panel Br. at 1–2,\\n8–12. Thus, as the Government points out, Appellee’s Br. at 38, we may properly treat these\\narguments as forfeited, and we do so here. Cf. Elzy v. United States, 205 F.3d 882, 886 (6th Cir.\\n2000).\\n\\n We can now turn to whether Williams has in fact satisfied one of § 2255(h)’s two\\nalternative requirements. As we have explained in a comparable case, because this is a second or\\nsuccessive motion under § 2255, Williams “needs new law.” Potter, 887 F.3d at 787. “In one\\nsense, he has it. Johnson [II] announced a new rule of constitutional law when it invalidated the\\nresidual clause, and Welch v. United States, 136 S. Ct. 1257 (2016), made the rule retroactive to\\ncases on collateral review.” Potter, 887 F.3d at 787. Williams therefore, under binding\\nprecedent, must show that it is more likely than not “that the district court relied only on the\\n\\n No. 17-3211 Williams v. United States Page 15\\n\\n\\nresidual clause in sentencing” him.7 See id.; see also Dimott v. United States, 881 F.3d 232, 243\\n(1st Cir. 2018) (“[T]o successfully advance a Johnson II claim on collateral review, a habeas\\npetitioner bears the burden of establishing that it is more likely than not that he was sentenced\\nsolely pursuant to ACCA’s residual clause.”); Beeman v. United States, 871 F.3d 1215, 1221–22\\n(11th Cir. 2017) (“To prove a Johnson claim, the movant must show that—more likely than\\nnot—it was use of the residual clause that led to the sentencing court’s enhancement of his\\nsentence.”); but see United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017) (concluding that\\nthe movant may proceed with his claim under Johnson II if the sentencing court “may have”\\nrelied on the residual clause); United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017)\\n(“[W]hen an inmate’s sentence may have been predicated on application of the now-void\\nresidual clause and, therefore, may be an unlawful sentence under the holding in Johnson II, the\\ninmate has shown that he ‘relies on’ a new rule of constitutional law.”).8 It is not enough for him\\n\\n 7In Raines v. United States, we interpreted Potter to “stand[] for the proposition that a 28 U.S.C. § 2255\\nmovant seeking relief under Johnson must show ‘evidence that the district court relied only on the residual clause\\nin’ making the ACCA determination under attack if (1) the movant is bringing a second or successive motion and\\n(2) there is evidence that the movant was sentenced under a clause other than the residual clause, such as the\\nsentencing judge’s averment that the movant was indeed sentenced under another clause.” 898 F.3d 680, 686 (6th\\nCir. 2018). We read Raines’s second condition to limit Potter to cases in which there is affirmative evidence that\\nthe sentencing court sentenced the movant under a clause other than the residual clause, the situation confronted in\\nPotter itself. See Potter, 887 F.3d at 788 (“[T]he judge who reviewed his § 2255 motion is the same judge who\\nsentenced him. It is difficult to think of a better source of information about what happened the first time. Judge\\nReeves saw no value to a second sentencing because he sentenced Potter under the enumerated-crimes clause.”).\\nWilliams’s case presents no such affirmative evidence. Here, however, because we conclude that Williams satisfies\\nPotter’s presumably tougher standard, we need not decide what lesser showing a movant might be required to make\\nwhere there is no affirmative evidence that he was sentenced under a different clause than the residual clause.\\n 8To the extent that Potter’s phrase “relied only on” may appear to differ from the First and Eleventh\\nCircuits’ formulations, see 887 F.3d at 797, the Government argues that “[t]he ‘relied only on’ clarification\\nemphasizes the need for the evidence [of reliance on the residual clause] to preponderate” over any evidence of\\nreliance on a different clause. Appellee’s Br. at 46. We believe that the Government is correct, in the sense that\\nPotter’s test can be satisfied only when there is reason to believe that the residual clause was doing more than fifty\\npercent of the sentencing’s judge’s analytical work—that is, only when the residual clause was the decisive clause in\\nthe sentencing judge’s rationale.\\n To appreciate the meaning of this distinction, imagine two prisoners, each raising Johnson II claims. The\\nfirst was sentenced by a judge who explicitly stated on the record: “I conclude that both the elements clause and the\\nresidual clause fully justify your sentence.” The second was sentenced by a judge who explicitly stated on the\\nrecord: “I conclude that the residual clause fully justifies your sentence, but it is possible that the elements clause\\nmight too.” We understand the import of Potter’s “relie[s] only on” clause to be that the first prisoner could not\\nraise a second or successive Johnson II claim, whereas the second could, because ultimately the reliance in that case\\nwould have been on the residual clause. This approach bears a passing resemblance to how we treat the analytically\\nthorny habeas question of whether a state court based a judgment on federal law or on an “independent and adequate\\nstate ground,” see Coleman v. Thompson, 501 U.S. 722, 732–35 (1991) (explaining that we may not consider the\\nclaim when a state court states “clearly and expressly” that state law is doing just as much or more work than federal\\n\\n No. 17-3211 Williams v. United States Page 16\\n\\n\\nto show simply that “the sentencing court may have relied on the residual clause.” Potter, 887\\nF.3d at 788.\\n\\n The parties point to two sources of evidence for assessing whether a movant was\\nsentenced for a relevant predicate conviction under the ACCA’s residual clause: “1) the original\\nsentencing proceedings; and 2) the relevant legal background at the time of the sentencing.”\\nAppellant’s Br. at 40; accord Appellee’s Br. at 49 (“Once again, Potter is instructive. It\\nrecognized that there are two primary sources of material that may be consulted: (i) the\\nsentencing record, and (ii) case law that existed at the time of sentencing.”). This list is\\nunderinclusive, even just drawing from Potter. In fact, while we agree that those two sources of\\nevidence are well-established and helpful, Potter and cases from our sister circuits reveal at least\\nfive places that courts choose to look:\\n\\n (1) The sentencing record\\n (2) The legal background\\n (3) Informed decisionmakers\\n (4) Nature of the predicate offense\\n (5) Later legal developments (at least if highly predictable)\\n\\nSee Potter, 887 F.3d at 788; Dimott, 881 F.3d at 240–41; United States v. Taylor, 873 F.3d 476,\\n480–82 (5th Cir. 2017); Beeman, 871 F.3d at 1224 & nn.4–5; United States v. Snyder, 871 F.3d\\n1122, 1128–29 (10th Cir. 2017). We consider each in turn.\\n\\n\\n\\nlaw in its analysis, id. at 733–34 (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)), whereas we presume the\\nopposite “when the [state-court] decision ‘fairly appears to rest primarily on federal law, or to be interwoven with\\nthe federal law, and when the adequacy and independence of any possible state law ground is not clear from the face\\nof the opinion,’” id. at 735 (quoting Michigan v. Long, 463 U.S. 1032, 1040–41 (1983))). Thus, in somewhat the\\nsame way that a habeas petitioner cannot obtain review when he can prove no more than that federal law\\nsupplemented the independently sufficient state-law rationale that the state court gave, a movant under Potter cannot\\nshow “that the district court relied only on the residual clause in sentencing” him when he can prove no more than\\nthat the residual clause supplemented an independently sufficient reliance on one of the other two clauses. See\\nPotter, 887 F.3d at 787.\\n Of course, determining on which clause or clauses the sentencing judge relied will often hinge on the legal\\nfiction of attempting to reconstruct what the sentencing judge must have thought based on other, objective evidence.\\nSee, e.g., Potter, 887 F.3d at 788; Dimott, 881 F.3d at 240–41; United States v. Taylor, 873 F.3d 476, 480–82 (5th\\nCir. 2017); Beeman, 871 F.3d at 1224 & nn.4–5; United States v. Snyder, 871 F.3d 1122, 1128–29 (10th Cir. 2017).\\nWe discuss below, in light of Potter and persuasive authority from other circuits, how to make that objective\\nassessment in this case.\\n\\n No. 17-3211 Williams v. United States Page 17\\n\\n\\n 1. Sentencing Record\\n\\n Virtually all courts, including ours, look to a prisoner’s sentencing record. See Potter,\\n887 F.3d at 788; see also Dimott, 881 F.3d at 240; Beeman, 871 F.3d at 1224 & n.4; Snyder, 871\\nF.3d at 1128. But this source is both the simplest and least helpful in cases like this one because,\\nas all agree, the record itself offers no guidance. See Appellant’s Br. at 41; Appellee’s Br. at 5,\\n53. Williams cannot rely on the sentencing record to meet a heightened burden for invoking\\nJohnson II.\\n\\n 2. Legal Background\\n\\n Most courts also look, as we do, to the operative legal background. See Potter, 887 F.3d\\nat 788; see also Taylor, 873 F.3d at 482; Beeman, 871 F.3d at 1224 & n.5; Snyder, 871 F.3d at\\n1129. In Snyder, for example, as the parties observe, the Tenth Circuit looked to “a ‘snapshot’ of\\nwhat the controlling law was at the time of sentencing.” 871 F.3d at 1129. Reasoning that the\\nSupreme Court’s rationale in Taylor v. United States, 495 U.S. 575, 599, 602 (1990), “would\\nhave [left] little dispute at the time of Snyder’s sentencing that his two Wyoming burglary\\nconvictions involving occupied structures fell within the scope of the ACCA’s enumerated\\ncrimes clause,” the court rejected Snyder’s claim under Johnson II. Snyder, 871 F.3d at 1229.\\nPotter, similarly, pointed to cases from “the time” that had identified Georgia burglary as a\\nqualifying ACCA predicate under the enumerated-crimes clause in rejecting Potter’s petition.\\n887 F.3d at 788.\\n\\n By contrast, in Taylor, the Fifth Circuit, while not adopting a particular standard burden\\nfor Johnson II petitioners, concluded that the petitioner there, Taylor, could rely on Johnson II\\nbecause “there was precedent suggesting that Taylor’s third predicate conviction could have\\napplied only under the residual clause.” 873 F.3d at 482 (citing United States v. Gracia-Cantu,\\n302 F.3d 308, 311–13 (5th Cir. 2002)). “Theoretically,” the court explained, “the district court\\nmistakenly could have been thinking of the elements clause when sentencing Taylor.” Id. But it\\nnevertheless refused to “hold a defendant responsible for what may or may not have crossed a\\njudge’s mind during sentencing.” Id.\\n\\n No. 17-3211 Williams v. United States Page 18\\n\\n\\n Williams’s case is more like Taylor than it is like Snyder or Potter. Here, as Williams\\npoints out, Appellant’s Br. at 43, there was only one case at the time of Williams’s sentencing\\nthat could have informed his sentencing: United States v. Calloway, 189 F. App’x 486 (6th Cir.\\n2006). Although that case involved Ohio aggravated assault under Ohio Rev. Code § 2903.12\\nrather than § 2903.11 and the Guidelines rather than the ACCA, those are distinctions without\\ndifferences: Ohio aggravated assault is functionally “identical” to Ohio felonious assault,\\nAnderson, 695 F.3d at 402, and the relevant Guidelines provision was also functionally identical,\\nsee U.S.S.G. § 4B1.2(a) (2006); United States v. Patterson, 853 F.3d 298, 305 (6th Cir.), cert.\\ndenied, 138 S. Ct. 273 (2017). The language from our decision, meanwhile, is telling:\\n\\n Calloway argues that aggravated assault is not a predicate crime of violence as a\\n defendant may cause physical harm without the use, attempted use or threatened\\n use of physical force as required by U.S.S.G. Section 4B1.2(a)(1).\\n Calloway’s argument that the aggravated assault is not a crime of violence\\n is without merit. There is no question that causing or attempting to cause physical\\n harm presents a serious risk of physical injury to another under Section\\n 4B1.2(a)(2) of the Sentencing Guidelines.\\n\\nId. at 491. In other words, Calloway had argued that his crime did not qualify under the\\nelements clause, and we rejected his argument because his crime did qualify under the residual\\nclause. See id. By expressly endorsing that one qualifying clause, we at the very least suggested\\nstrongly that the residual clause was a better justification than the elements clause. Cf. NLRB v.\\nSW Gen., Inc., 137 S. Ct. 929, 940 (2017) (discussing the expressio unius canon). Therefore,\\nboth in light of the methods that other courts have adopted and the “presumption in the law that a\\ndistrict court knows and applies the law correctly,” Appellee’s Br. at 51 (quoting United States v.\\nGale, 468 F.3d 929, 941 (6th Cir. 2006)), we presume that when Judge Dowd sentenced\\nWilliams, Calloway pointed him to the residual clause.\\n\\n Notably, the Government failed to offer a response to Calloway either in its briefing or at\\noral argument. Although that was enough to forfeit this issue, see, e.g., U.S. ex rel. Marlar v.\\nBWXT Y-12, LLC, 525 F.3d 439, 450 n.6 (6th Cir. 2008), the Government did belatedly address\\nthe issue in a letter it sent to the en banc court following oral argument, see Doc. 48 (Appellee’s\\nLetter of June 14, 2018, at 1). Even if we were not to deem the Government’s response on this\\nscore forfeited, its arguments are unavailing. First, the Government argues that “the residual-\\n\\n No. 17-3211 Williams v. United States Page 19\\n\\n\\nclause discussion [in Calloway] was not necessary to the decision because the offense was\\nenumerated in the commentary.” Id. But that does not change the guidance that Calloway would\\nhave offered Judge Dowd in sentencing Williams under the ACCA, because the offense was not\\nenumerated for ACCA purposes. See 18 U.S.C. § 924(e). Second, the Government argues,\\n“even if [Calloway] could be read to hold that the residual clause provides a basis for classifying\\nthis offense as a crime of violence, it does not hold that the residual clause is the only basis for\\nthat conclusion.” Doc. 48 (Appellee’s Letter of June 14, 2018, at 1). But that too is beside the\\npoint because Williams’s challenge here is to prove that the residual clause was more likely than\\nnot the decisive clause on which Judge Dowd relied—not that it is impossible to imagine an\\nalternate universe in which he relied on the elements clause instead. Thus, if Calloway was the\\nonly case around offering any guidance—and we find that it was—that suggests that it is more\\nlikely than not that Judge Dowd relied on the residual clause rather than the elements clause.\\n\\n It is also true, moreover, that the categorical shortcomings of Ohio Rev. Code § 2903.11\\nshould have been just as identifiable in 2006 as they are today. Much as the Tenth Circuit\\npointed out in Snyder, 871 F.3d at 1229, the dictates of the categorical approach had been clear\\nsince the Supreme Court’s 1990 Taylor decision, see 495 U.S. at 588–90. And as the Supreme\\nCourt emphasized in its Johnson I ruling, the meaning of “force” in the context of the ACCA has\\nalso long been recognized:\\n\\n We think it clear that in the context of a statutory definition of “violent felony,”\\n the phrase “physical force” means violent force—that is, force capable of causing\\n physical pain or injury to another person. See Flores v. Ashcroft, 350 F.3d 666,\\n 672 (7th Cir. 2003) (Easterbrook, J.). Even by itself, the word “violent” in\\n § 924(e)(2)(B) connotes a substantial degree of force. Webster’s Second 2846\\n (defining “violent” as “[m]oving, acting, or characterized, by physical force, esp.\\n by extreme and sudden or by unjust or improper force; furious; severe;\\n vehement . . .”); 19 Oxford English Dictionary 656 (2d ed. 1989)\\n (“[c]haracterized by the exertion of great physical force or strength”); Black’s\\n 1706 (“[o]f, relating to, or characterized by strong physical force”). When the\\n adjective “violent” is attached to the noun “felony,” its connotation of strong\\n physical force is even clearer. See id. at 1188 (defining “violent felony” as “[a]\\n crime characterized by extreme physical force, such as murder, forcible rape, and\\n assault and battery with a dangerous weapon”); see also United States v. Doe, 960\\n F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (“[T]he term to be defined, ‘violent\\n felony,’ . . . calls to mind a tradition of crimes that involve the possibility of more\\n closely related, active violence”).\\n\\n No. 17-3211 Williams v. United States Page 20\\n\\n\\nJohnson I, 559 U.S. at 140–41 (non-Bluebook alterations in original). Because Williams’s\\n“sentencing proceeding occurred against the backdrop of the Supreme Court’s decision in\\nTaylor” and the longstanding legal and linguistic concepts discussed in Johnson I, see Snyder,\\n871 F.3d at 1129, and given that we presume “that a district court knows and applies the law\\ncorrectly,” Appellee’s Br. at 51 (quoting Gale, 468 F.3d at 941), it is even more likely that Judge\\nDowd would have steered clear of the categorical red flags in Ohio Rev. Code § 2903.11’s\\nelements. See, e.g., Burris, 912 F.3d at 397–98; Perry, 703 F.3d at 910; Anderson, 695 F.3d at\\n403–06 (6th Cir. 2012) (White, J., concurring). In sum, it seems clear that Judge Dowd more\\nlikely than not relied decisively on the residual clause in determining that Williams’s conviction\\nunder Ohio Rev. Code § 2903.11 qualified as an ACCA predicate.\\n\\n 3. Informed Decisionmakers\\n\\n A third source of evidence that we and other courts have looked to is whether the district\\njudge who sentenced a petitioner is the same district judge who evaluated that petitioner’s § 2255\\nmotion. See Potter, 887 F.3d at 788 (“On top of that, the judge who reviewed his § 2255 motion\\nis the same judge who sentenced him. It is difficult to think of a better source of information\\nabout what happened the first time around.”); see also Dimott, 881 F.3d at 237 (“On collateral\\nreview, the district court judge in both cases (who had also served as the sentencing judge) found\\nthat Dimott and Collamore had earlier been sentenced pursuant to the ACCA’s enumerated\\nclause. . . . Although these findings were made during the collateral review process, and not\\nexpressly stated at the time of sentencing, we give them due weight because the habeas judge\\nwas describing his own decisions at sentencing.”); cf. Snyder, 871 F.3d at 1128 (“In other words,\\nthe district court found, as a matter of historical fact, that it did not apply the ACCA’s residual\\nclause in sentencing Snyder under the ACCA.”).\\n\\n This source of evidence is not available here: while Williams was sentenced by Judge\\nDowd, see, e.g., R. 18 (Sentencing Mem. Op. at 1) (Page ID #34), his § 2255 motion was\\nconsidered below by Judge Oliver, R. 49 (Dist. Ct. Order at 1) (Page ID #397), and Judge Dowd\\nhas since passed away. While this source casts no affirmative light on the question at hand, it\\ndistinguishes Williams’s petition from Potter and Dimott, in which the reviewing courts cited\\nthat source of evidence to buttress their rationales for denying relief.\\n\\n No. 17-3211 Williams v. United States Page 21\\n\\n\\n 4. Nature of the Predicate Offense\\n\\n Some courts also look to the nature of the predicate offense to help piece together a\\ndistrict court’s sentencing decision. For example, in Potter, we pointed to the fact that the crime\\nat issue was Georgia burglary as additional evidence that the petitioner was unlikely to have been\\nsentenced under the residual clause. See 887 F.3d at 788–89 (listing “the specification of\\n‘burglary’ in the enumerated-crimes clause of the Act,” id. at 788, as one of the four factors on\\nwhich this court was basing its conclusion). Likewise, in Holt v. United States, 843 F.3d 720\\n(7th Cir. 2016), a case cited by Potter, the Seventh Circuit considered a Johnson II movant who\\nsought to contest the applicability of his prior conviction for Illinois burglary. Id. at 721. In\\nrejecting Holt’s petition, however, the court specifically distinguished Holt from a petitioner like\\nWilliams. After reciting the clauses of the ACCA, the court explained:\\n\\n [T]he residual clause . . . contains the only language that Johnson held\\n unconstitutionally vague. The possibility that after Johnson defendants may have\\n a stronger incentive to contest the classification of convictions under the elements\\n clause—in the hope of moving them to the residual clause and thus eliminating\\n them from the set of violent felonies—has nothing to do with Holt’s situation.\\n His burglary conviction was classified as a violent felony under the burglary\\n clause. Nothing in Johnson, Welch, or Stanley [an earlier Seventh Circuit case]\\n affects the proper treatment of burglary convictions. So Holt’s second collateral\\n attack cannot rest on Johnson.\\n\\nId. at 723.\\n\\n This language suggests that courts might reasonably treat a conviction for an ostensibly\\nenumerated crime as allowing somewhat greater certainty about a sentencing judge’s\\ndecisionmaking than would a crime at the fault line between the elements clause and the residual\\nclause. See id. Regardless, Williams was not convicted of an ostensibly enumerated crime, and\\nin any event he meets his burden based on the legal background alone. Nevertheless, we note\\nthat this factor also distinguishes Williams’s case from Potter, 887 F.3d at 787 (Georgia\\nburglary), as well as from Dimott, Snyder, and Holt, which all involved state burglary charges,\\nsee Dimott, 881 F.3d at 234 (Maine burglary); Snyder, 871 F.3d at 1125 (Wyoming burglary);\\nHolt, 843 F.3d at 720 (Illinois burglary).\\n\\n No. 17-3211 Williams v. United States Page 22\\n\\n\\n 5. Later Legal Developments\\n\\n Finally, while some of the courts that look to “a ‘snapshot’ of what the controlling law\\nwas at the time of sentencing” purposefully exclude from that analysis “post-sentencing\\ndecisions that may have clarified or corrected pre-sentencing decisions,” Snyder, 871 F.3d at\\n1129, others have also consulted after-the-fact case law. In Dimott, for example, the First Circuit\\nexpressly relied on one of its own recent opinions on the ground that the recent opinion’s\\n“holding [was] a ‘straightforward’ application of the 1990 Supreme Court decision in Taylor v.\\nUnited States, 495 U.S. 575 (1990).” Dimott, 881 F.3d at 241 (quoting United States v.\\nDuquette, 778 F.3d 314, 317 (1st Cir. 2015)). Likewise, though less pivotally, we in Potter\\nobserved that “[c]ases decided after [Potter’s] sentencing” confirmed that Georgia burglary\\nqualified under the enumerated-crimes clause, though it offered this observation only after noting\\nthat cases that preceded Potter’s sentencing had said so, too. 887 F.3d at 788. Here, however,\\nwhile we ruled in Anderson that Ohio felonious assault qualified under the elements clause in\\n2012, 695 F.3d at 400, 402, we then ruled (the very next year) in Perry, without mentioning\\nAnderson, that the (functionally identical) crime of Ohio aggravated assault qualified only under\\nthe residual clause, see Perry, 703 F.3d at 910. Thus, as the Government concedes, “the after-\\nannounced decisions do not support a presumption one way or the other that the sentencing court\\nrelied on the elements or the residual clause in this case.” Appellee’s Br. at 54.\\n\\n ***\\n\\n In short, surveying the various sources of evidence that we can draw from, the balance\\ntips in Williams’s favor. Williams’s sentencing record and later legal developments provide no\\nguidance one way or the other, and there is no informed decisionmaker on whose recollection we\\ncan draw. But the one case that informs the legal background at the time of Williams’s\\nsentencing points appreciably toward the residual clause, and the nature of the predicate offense\\nat the very least does not vitiate that conclusion. Williams has therefore met his burden in\\nproving that Judge Dowd more likely than not relied on the residual clause in deeming his\\nconviction under Ohio Rev. Code § 2903.11(A) an ACCA predicate. Williams is accordingly\\nentitled under § 2255(h)(2) to raise a second or successive motion.\\n\\n No. 17-3211 Williams v. United States Page 23\\n\\n\\nD. Whether Williams’s ACCA Sentence Can Stand\\n\\n Williams’s conviction under Ohio Rev. Code § 2903.11(A) can no longer qualify as an\\nACCA predicate under the residual clause. Johnson II, 135 S. Ct. at 2557. The only question\\nleft is whether it can nevertheless qualify as an ACCA predicate under the elements clause. See\\n18 U.S.C. § 924(e)(2)(B)(i); see also, e.g., Van Cannon v. United States, 890 F.3d 656, 661 (7th\\nCir. 2018) (“To win § 2255 relief, Van Cannon had to establish a Johnson error and that the error\\nwas harmful. The government confessed the Johnson error . . . . The only remaining dispute\\nconcerned the question of prejudice.”). For the reasons provided by our en banc court in Burris,\\nOhio Rev. Code § 2903.11(A)(1) is a categorical mismatch with the functionally identical\\nelements clauses of both the ACCA and the Guidelines. Burris, 912 F.3d at 399.\\n\\n Williams was convicted of violating Ohio Rev. Code § 2903.11(A), and it is undisputed\\nat this stage that none of the Shepard documents suggests that he was in fact convicted under a\\nparticular prong. See R. 39-3 (Indictment and Journal Entry) (Page ID #227–28); R. 48-1\\n(Sentencing Tr. at 7–8, 11) (Page ID #389–90, 393); Appellant’s Br. at 16. That conviction\\ntherefore cannot validly serve as an ACCA predicate. Because that leaves him with only two\\nqualifying ACCA predicates, his sentence as an armed career criminal no longer comports with\\nfederal law. See 18 U.S.C. § 924(e)(1); PSR at 1, 7–8; R. 1 (Indictment) (Page ID #3–4).\\n\\n III. CONCLUSION\\n\\n Because Williams has shown that it is more likely than not that his sentencing judge\\ndecisively relied on the residual clause in deeming his Ohio felonious assault conviction an\\nACCA predicate, he is entitled to raise a second or successive motion under § 2255 in light of\\nJohnson II. Because neither the residual clause nor the elements clause can now justify deeming\\nthat conviction an ACCA predicate, Williams’s federal prison sentence as an armed career\\ncriminal is no longer justified under federal law. We accordingly VACATE Williams’s sentence\\nand REMAND for resentencing.\\n\\n No. 17-3211 Williams v. United States Page 24\\n\\n\\n _________________\\n\\n CONCURRENCE\\n _________________\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405595/\", \"author_raw\": \"KAREN NELSON MOORE, Circuit Judge\"}, {\"author\": \"MERRITT, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"MERRITT, Circuit Judge, concurring. I concur in Judge Moore’s comprehensive and\\ncomplex opinion in this case written after and in light of the court’s en banc opinion in United\\nStates v. Burris, 912 F.3d 386 (6th Cir. 2019). But at the same time I continue to agree with my\\ndissenting opinion when our panel heard the case initially in 2017. Williams v. United States,\\n875 F.3d 803, 809 (6th Cir. 2017). In that dissenting opinion, I concluded that United States v.\\nAnderson, 695 F.3d 390 (6th Cir. 2012) (now apparently rejected in Burris), was no longer\\napplicable in light of the Supreme Court’s opinion in Mathis v. United States, 136 S. Ct. 2243\\n(2016).\\n\\n Perhaps the Armed Career Criminal Act will someday be repealed.\\n\\n In the last paragraph of my dissenting opinion two years ago, I pointed out what the two\\njustices thought about this law. “Justice Breyer said, the Armed Career Criminal Act creates a\\n‘time-consuming legal tangle.’ Mathis, 136 S. Ct. at 2264 (Breyer, J., dissenting). Justice Alito\\nagreed and referred to the analytical process simply as a ‘mess.’ Id. at 2269 (Alito, J.,\\ndissenting).”\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405595/\", \"author_raw\": \"MERRITT, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"MOORE"},"judge2":{"kind":"string","value":"MERRITT"},"judge3":{"kind":"string","value":"MOORE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628342/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Brian D. WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0127p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n BRIAN D. WILLIAMS, ┐\n Petitioner-Appellant, │\n │\n > No. 17-3211\n v. │\n │\n │\n UNITED STATES OF AMERICA, │\n Respondent-Appellee. │\n ┘\n\nOn Remand from the En Banc Court of the United States Court of Appeals for the Sixth Circuit.\n United States District Court for the Northern District of Ohio at Cleveland.\n Nos. 1:06-cr-00244-1; 1:16-cv-00520—Solomon Oliver Jr., District Judge.\n\n Decided and Filed: June 11, 2019\n\n Before: MERRITT, MOORE, and ROGERS, Circuit Judges.\n\n MOORE, J., delivered the opinion of the court in which MERRITT and ROGERS, JJ.,\njoined. MERRITT, J. (pg. 24), delivered a separate concurring opinion.\n _________________\n\n OPINION\n _________________\n\n KAREN NELSON MOORE, Circuit Judge. This case returns to us on remand from our\nen banc court in light of the en banc court’s decision in United States v. Burris, 912 F.3d 386\n(6th Cir. 2019) (en banc). Since we last addressed Petitioner-Appellant Brian Williams’s\ncollateral attack on his federal sentence under the Armed Career Criminal Act (“ACCA”),\n18 U.S.C. § 924(e); see Williams v. United States, 875 F.3d 803 (6th Cir. 2017), and while\ngranting Williams’s petition for rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), our court has\nraised concerns regarding Williams’s ability to raise a cognizable motion for relief under\n28 U.S.C. § 2255 in light of various provisions constraining collateral review. In this opinion,\n\n No. 17-3211 Williams v. United States Page 2\n\n\nper the en banc court’s remand, we address those concerns in light of the comprehensive\nargument before the en banc court and then proceed to address the merits of Williams’s motion\nin light of Burris. Because Williams qualifies for review under § 2255 and because no ACCA\nprovision justifies his sentence, we VACATE Williams’s sentence and REMAND for\nresentencing.\n\n I. BACKGROUND\n\nA. Williams’s Conviction for Ohio Felonious Assault\n\n In early 2000, Williams was indicted for, pleaded guilty to, and was convicted of\nattempted felonious assault in violation of Ohio Rev. Code § 2903.11(A). R. 39-3 (State\nIndictment and Journal Entry) (Page ID #227–28); R. 48-1 (State Sentencing Tr. at 7–8, 11)\n(Page ID #389–90, 393). Ohio Rev. Code § 2903.11(A) provides:\n\n No person shall knowingly do either of the following:\n (1) Cause serious physical harm to another . . . ;\n (2) Cause or attempt to cause physical harm to another . . . by means of a\n deadly weapon or dangerous ordnance.\n\nOhio law in turn defines “serious physical harm,” as included in § 2903.11(A)(1), to include\n“[a]ny mental illness or condition of such gravity as would normally require hospitalization or\nprolonged psychiatric treatment.” Ohio Rev. Code § 2901.01(A)(5)(a). As Williams points out,\nnone of the Shepard documents surrounding that conviction, see Shepard v. United States,\n544 U.S. 13, 26 (2005), makes clear which of the two prongs of § 2903.11(A) Williams was\nconvicted of having violated. Appellant’s Br. at 16.1 The Government does not dispute this\ncharacterization of the Shepard documents.\n\nB. Williams’s Sentencing as an Armed Career Criminal\n\n In 2006, Williams was indicted for, pleaded guilty to, and was convicted of being a felon\nin possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in the U.S. District Court for the\nNorthern District of Ohio. R. 1 (Indictment) (Page ID #3–4); R. 19 (Judgment at 1) (Page ID\n\n 1We use this designation to reference the parties’ supplemental briefs before the en banc court. We use the\nlonger designation “Appell[ant/ee]’s Panel Br.” to refer to the parties’ prior submissions to this panel.\n\n No. 17-3211 Williams v. United States Page 3\n\n\n#39). The ACCA applied then (and continues to apply) to anyone convicted of violating\n§ 922(g) who “has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1).\nThe probation department recommended that Williams be sentenced as an armed career criminal\nunder the ACCA, and the sentencing judge, Judge Dowd, agreed. See R. 18 (Sentencing Mem.\nOp. at 4) (Page ID #37); R. 25 (Sentencing Tr. at 2) (Page ID #116); Presentence Report (“PSR”)\nat 1, 7–8. Williams’s 2000 conviction for attempted felonious assault under Ohio Rev. Code\n§ 2903.11(A) was one of the three prior convictions on which the probation department—and,\nultimately, Judge Dowd—based this conclusion. See PSR at 1, 7–8; see also R. 1 (Indictment)\n(Page ID #3–4).\n\n At the time, the ACCA defined “violent felony” to include any felony punishable by over\none year of imprisonment that either:\n\n (i) has as an element the use, attempted use, or threatened use of physical force\n against the person of another [“elements clause”]; or\n (ii) is burglary, arson, or extortion, involves use of explosives [“enumerated-\n crimes clause”], or otherwise involves conduct that presents a serious\n potential risk of physical injury to another [“residual clause”] . . . .\n\n18 U.S.C. § 924(e)(2)(B). The parties agree that neither Judge Dowd nor probation specified the\ngrounds on which Williams’s 2000 conviction qualified as an ACCA predicate and that nothing\nelse in the sentencing record sheds further light. See Appellant’s Br. at 41; Appellee’s Br. at 5,\n53. Williams was sentenced to 180 months in prison. R. 19 (Judgment at 2) (Page ID #40).\n\nC. Prior § 2255 Petitions and Intervening Legal Developments\n\n Williams soon began seeking postconviction relief. In 2007, he moved pro se to vacate\nhis sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel, lack of federal\njurisdiction for failure to satisfy the interstate-commerce element, and double jeopardy. R. 21\n(2007 Mot. to Vacate at 4–7) (Page ID #55–58). The district court denied his motion. R. 29\n(Dist. Ct. Op. & Order) (Page ID #185–87).\n\n In 2010, Williams again moved pro se to vacate his sentence under § 2255. In that\nmotion, he maintained that § 924(e)(1) did “not apply to him,” arguing that at least one of his\nprior convictions did not “fit the criteria for application [of the] 924(e)(1) enhancement” and\n\n No. 17-3211 Williams v. United States Page 4\n\n\nciting the Supreme Court’s recent ruling that the ACCA’s “phrase ‘physical force’ means violent\nforce.” See R. 31 (2010 Mot. to Vacate at 1–2) (Page ID #191–92); Curtis Johnson v. United\nStates (“Johnson I”), 559 U.S. 133, 140 (2010). Williams also argued that the sentence imposed\non him violated United States v. Booker, 543 U.S. 220 (2005), and his right to a jury trial. R. 31\n(2010 Mot. to Vacate at 2–3) (Page ID #192–93). The district court transferred the motion to\nthis court for authorization to file a second or successive motion, R. 32 (Transfer Order) (Page\nID #195), and we denied Williams’s request, R. 33 (2010 CA6 Order) (Page ID #196–97).\n\n In 2012, a panel of our court ruled in United States v. Anderson, 695 F.3d 390 (6th Cir.\n2012), that felonious assault under Ohio Rev. Code § 2903.11(A) qualifies as a violent felony\nunder the ACCA’s elements clause. Id. at 402. The following year, a separate panel ruled that\naggravated assault under Ohio Rev. Code § 2903.12(A), which is functionally “identical” to the\nfelonious assault statute, Anderson, 695 F.3d at 402, qualifies as a violent felony under the\nACCA’s residual clause. United States v. Perry, 703 F.3d 906, 910 (6th Cir. 2013). Our court\ndid not cite Anderson in that decision.\n\n In 2013, Williams again sought authorization from our court to file a second or\nsuccessive motion under § 2255, “seeking to pursue the following grounds for relief:\n(1) ineffective assistance of counsel during plea bargaining; and (2) the unconstitutional\napplication of 18 U.S.C. § 922(g)(1) to his case.” R. 34 (2013 CA6 Order) (Page ID #199–200).\nWe again denied his request. Id. (2013 CA6 Order at 2) (Page ID #200).\n\n In 2014, Williams filed a third pro se motion in the district court under § 2255. R. 35\n(2014 Mot. to Vacate at 1) (Page ID #201). In that motion, Williams argued that Descamps v.\nUnited States, 570 U.S. 254 (2013), was retroactive and had established that his having been\nsentenced under the ACCA was “in conflict with the jury trial right as explained in Apprendi v.\nNew Jersey, 530 U.S. 466 (2000).” R. 35 (2014 Mot. to Vacate at 1) (Page ID #201). The\ndistrict court denied his motion. R. 36 (Dist. Ct. Order at 2) (Page ID #206).\n\nD. Johnson II and the § 2255 Petition at Issue Here\n\n In June 2015, in Samuel Johnson v. United States (“Johnson II”), 135 S. Ct. 2551 (2015),\nthe Supreme Court ruled that the residual clause of the ACCA was unconstitutionally vague. Id.\n\n No. 17-3211 Williams v. United States Page 5\n\n\nat 2557. In March 2016, this time represented by counsel, Williams moved (again in the district\ncourt) to vacate his sentence under § 2255 in light of the Supreme Court’s due-process-based\nruling in Johnson II. R. 39 (2016 Mot. to Vacate at 1, 3) (Page ID #210, 212). That April, the\nSupreme Court clarified that Johnson II was “a substantive decision and so has retroactive effect\n. . . in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1265 (2016). The\ndistrict court, meanwhile, transferred Williams’s § 2255 motion to this court, R. 42 (Transfer\nOrder) (Page ID #240–41), and this court, noting that “much has changed in the four years since\nwe decided Anderson,” granted Williams authorization, R. 43 (2016 CA6 Order at 4, 6) (Page ID\n#245, 247). Both we and the district court, however, rejected Williams’s claim on the merits,\nreasoning that Anderson had not been abrogated and thus remained controlling, regardless of its\nultimate wisdom. See Williams, 875 F.3d at 807 (opinion of Rogers, J.); id. (Moore, J.,\nconcurring in the judgment); R. 49 (Dist. Ct. Order at 14) (Page ID #410). Our court granted\nrehearing en banc, 882 F.3d 1169 (6th Cir. 2018), and later issued letters directing the parties to\naddress in their briefing the court’s ability to entertain Williams’s clearly second-in-time—and\npotentially duplicative—motion for postconviction relief under § 2255. See Doc. 33 (Letter of\nMar. 9, 2018); Doc. 34 (Letter of Mar. 20, 2018). Oral argument was heard by the en banc court\non June 13, 2018, during which time we probed both parties further on the issues raised by our\nbriefing letters.\n\n That same day, we also heard oral argument en banc in Burris, in which we probed in\nmore detail whether felonious assault under Ohio Rev. Code § 2903.11(A)(1) qualifies as a\nviolent felony under the ACCA or (for our purposes identical) elements clause of the United\nStates Sentencing Guidelines (“Guidelines” or “U.S.S.G”). Compare U.S.S.G. § 4B1.2(a)(1),\nwith 18 U.S.C. § 924(e)(2)(B)(i). In our recently released Burris decision, the en banc court\nreasoned that Ohio Rev. Code § 2903.11(A)(1) is a categorical mismatch with the ACCA’s and\nGuidelines’ elements clauses, notwithstanding Anderson. Following that decision, the en banc\ncourt in this (Williams) case ruled that Anderson has been overruled and remanded this case to\nour panel for further proceedings in light of that determination. We thus proceed to consider\nWilliams’s case.\n\n No. 17-3211 Williams v. United States Page 6\n\n\n II. DISCUSSION\n\n This case on remand requires us to consider (1) whether Williams is entitled to\nconsideration of his claims on collateral review and, if he is, (2) whether he is in fact entitled to\nrelief. Answering both questions in the affirmative, we VACATE Williams’s sentence and\nREMAND for resentencing.\n\nA. AEPDA\n\n The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.\n104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code), was\nenacted “to further the principles of comity, finality, and federalism.” Williams v. Taylor,\n529 U.S. 420, 436 (2000). In order to do that, AEDPA plainly “restrict[ed] the availability of\nrelief to habeas petitioners” in general, Felker v. Turpin, 518 U.S. 651, 664 (1996), and it\n“greatly restrict[ed] the power of federal courts to award relief to state prisoners who file second\nor successive habeas corpus applications,” Tyler v. Cain, 533 U.S. 656, 661 (2001).\nNevertheless, despite its clear goals, “in a world of silk purses and pigs’ ears, the Act is not a silk\npurse of the art of statutory drafting.” Lindh v. Murphy, 521 U.S. 320, 336 (1997).\n\n One provision, 28 U.S.C. § 2254, applies to prisoners in state custody; another applies to\nprisoners in federal custody, 28 U.S.C. § 2255. A third section, 28 U.S.C. § 2244, provides\nbroader guidance. For one, that section allows federal judges to dismiss duplicative habeas\nclaims brought by federal prisoners that have already been adjudicated on the merits by a federal\ncourt, but it includes the express caveat “except as provided in section 2255.” Id. § 2244(a); see\nalso In re Hanserd, 123 F.3d 922, 930 (6th Cir. 1997). Second, it states that “[a] claim presented\nin a second or successive habeas corpus application under section 2254 that was presented in a\nprior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Third, it mandates that prisoners\nseeking to file a “second or successive” habeas application first obtain “an order authorizing the\ndistrict court to consider the application,” id. § 2244(b)(3)(A), and it sets out the procedures for\nobtaining such authorization, id. § 2244(b)(3)(A)–(D). Fourth, it requires district courts to\n“dismiss any claim presented in a second or successive application that the court of appeals has\n\n No. 17-3211 Williams v. United States Page 7\n\n\nauthorized to be filed unless the applicant shows that the claim satisfies the requirements of this\nsection.” Id. § 2244(b)(4).\n\n Section 2255, meanwhile, refers back to § 2244 in applying the following provision to\nfederal prisoners:\n\n A second or successive motion must be certified as provided in section 2244 by a\n panel of the appropriate court of appeals to contain—\n\n (1) newly discovered evidence . . . or\n (2) a new rule of constitutional law, made retroactive to cases on\n collateral review by the Supreme Court, that was previously\n unavailable.\n\n28 U.S.C. § 2255(h). The threshold issue in this case is whether our court is permitted to\nadjudicate Williams’s claim in light of these provisions.\n\nB. Jurisdiction\n\n “[F]ederal courts have an independent obligation to ensure that they do not exceed the\nscope of their jurisdiction, and therefore [we] must raise and decide jurisdictional questions that\nthe parties either overlook or elect not to press.” Henderson v. Shinseki, 562 U.S. 428, 434\n(2011); see also Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir. 1998).\nHere, the en banc court did raise such jurisdictional issues, see Doc. 33 (Letter of Mar. 9, 2018);\nDoc. 34 (Letter of Mar. 20, 2018), and they were argued before the en banc court. For its part,\nthe Government conceded that none of the AEDPA provisions at issue here is jurisdictional.\nAppellee’s Br. at 27 & n.6, 38. The Government’s reasoning is helpful and persuasive, but we\n“have an independent obligation to” ensure our own jurisdiction, see Henderson, 562 U.S. at\n434; Douglas, 150 F.3d at 607, and jurisdiction is not the kind of thing that can be waived or\nforfeited, Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017); Mitchell v.\nMaurer, 293 U.S. 237, 244 (1934).\n\n We now address the threshold statutory questions that were argued before the en banc\ncourt and conclude that there is no threshold defect here. Two AEDPA provisions raise potential\nsuch concerns: § 2244(b)(1) (“A claim presented in a second or successive habeas corpus\napplication under section 2254 that was presented in a prior application shall be dismissed.”),\n\n No. 17-3211 Williams v. United States Page 8\n\n\nand § 2255(h) (“A second or successive motion must be certified as provided in section 2244 by\na panel of the appropriate court of appeals to contain (1) newly discovered evidence . . . or (2) a\nnew rule of constitutional law . . . .”).2 We conclude that § 2244(b)(1) does not apply to a federal\nprisoner like Williams3 and that the substantive requirements of § 2255(h) are nonjurisdictional.4\n\n 1. Section 2244(b)(1)\n\n With regard to § 2244(b)(1), we start and end with the text. Section § 2244(b)(1) reads:\n“A claim presented in a second or successive habeas corpus application under section 2254 that\nwas presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1) (emphasis\nadded). In other words, “[t]he limitations imposed by § 2244(b) apply only to a ‘habeas corpus\napplication under § 2254,’ that is, an ‘application for a writ of habeas corpus on behalf of a\nperson in custody pursuant to the judgment of a State court.’” Magwood v. Patterson, 561 U.S.\n320, 332 (2010) (quoting § 2254(b)(1) (emphasis shifted)); see also Gonzalez v. Crosby,\n545 U.S. 524, 528 (2005) (“A state prisoner may not file [a second or successive habeas]\npetition without precertification by the court of appeals that the petition meets stringent criteria.”\n(citing § 2244(b) (emphasis added)). As the Government concedes, Appellee’s Br. at 23–27, and\nas Williams points out, Appellant’s Br. at 18–25, this statutory language makes clear that it does\nnot apply to federal prisoners like Williams who are seeking relief under § 2255—a reading that\nis underscored by the fact that Congress clearly knew how to refer to federal prisoners (or all\napplicants) when it wanted to do so. See 28 U.S.C. § 2244(a); id. § 2244(b)(3)(A); see also\nHenson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[U]sually at least,\nwhen we’re engaged in the business of interpreting statutes we presume differences in language\nlike this convey differences in meaning.”). The Government and Williams are not alone in their\n\n\n 2In a sense, § 2244(b)(4) (“A district court shall dismiss any claim presented in a second or successive\napplication that the court of appeals has authorized to be filed unless . . . the claim satisfies the requirements of this\nsection.”) also raises possible jurisdictional concerns. We discuss below why it does not in fact have jurisdictional\neffect here.\n 3We need not address whether the language of § 2244(b)(1) is itself jurisdictional.\n 4We offer no opinion either on whether the procedural beginning of § 2255(h) (“[A] second or successive\nmotion must be certified as provided in section 2244 by a panel of the appropriate court of appeals . . . .”) is\njurisdictional. Because Williams has secured such authorization, see R. 43 (2016 CA6 Order at 6) (Page ID #247),\nhe has satisfied that requirement, and thus any opinion on this question would be dicta.\n\n No. 17-3211 Williams v. United States Page 9\n\n\njoint reading: other circuit courts have at least gestured in this direction too. See Moore v.\nUnited States, 871 F.3d 72, 78 (1st Cir. 2017); United States v. Winestock, 340 F.3d 200, 204–\n05, 208 (4th Cir. 2003); Stanko v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010).\n\n The main argument against this reading of § 2244(b)(1)’s plain text is that § 2255(h)\nrefers to § 2244 when it states that “[a] second or successive motion must be certified as\nprovided in section 2244 by a panel of the appropriate court of appeals to contain” one of the two\nthreshold conditions. 28 U.S.C. § 2255(h); see Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.\n2002) (“Although § 2244 refers to § 2254 rather than § 2255, we have held that the cross-\nreference to § 2244 in § 2255[(h)] means that it is equally applicable to § 2255 motions.” (citing\nBennett v. United States, 119 F.3d 468 (7th Cir. 1997))). But as Williams observes, Appellant’s\nBr. at 24 n.7, § 2255(h)’s reference to § 2244’s certification requirement is much more sensibly\nread as referring to the portions of § 2244 that actually concern the certification procedures, see\n28 U.S.C. § 2244(b)(3)—the provisions, in other words, that “provide[]” for how such a “motion\n[is to] be certified,” see id. § 2255(h). By contrast, it makes no linguistic sense to direct a court\nto “certif[y] as provided in section 2244[(b)(1)]” that a motion contains the threshold conditions\ndiscussed in § 2255(h); what makes linguistic sense is to direct a court to certify that those\npreconditions are met in accordance with the procedures laid out in § 2244(b)(3).5 There is,\naccordingly, “no reason to doubt that in” including the restrictive clause referring exclusively to\nstate prisoners in § 2244(b)(1), “Congress said what it meant and meant what it said.” Loughrin\nv. United States, 134 S. Ct. 2384, 2391 (2014).\n\n It bears noting that two published cases from our court have suggested (though without\nany explanation) that § 2244(b)(1) does apply in § 2255 cases. See Charles v. Chandler,\n180 F.3d 753, 758 (6th Cir. 1999) (per curiam); In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013)\n(citing Charles). These statements do not, however, bind us. That is because, while we may not\n\n 5Perhaps understandably, then, the Seventh Circuit case from which that circuit adopted the wholesale\nimportation of § 2244(b) into § 2255 was one that focused on the procedural requirements expressed in\n§ 2244(b)(3). See Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997) (“We take the phrase ‘as provided in\nsection 2244,’ which appears in section 2255, to mean that in considering an application under section 2255 for\npermission to file a second or successive motion we should use the section 2244 standard, and thus insist only on a\nprima facie showing of the motion’s adequacy [under § 2244(b)(3)(C)].”). It is not clear that the Seventh Circuit\never interrogated its later interpretation of that logic as extending to cover § 2244(b)(1) despite that subsection’s\nglaring textual red flag. See, e.g., Taylor, 314 F.3d at 836.\n\n No. 17-3211 Williams v. United States Page 10\n\n\noverrule the holding of a prior published case, see Salmi v. Sec’y of Health & Human Servs.,\n774 F.2d 685, 689 (6th Cir. 1985), “dictum in a prior decision—as opposed to a holding—does\nnot bind future panels,” In re Campbell, 874 F.3d 454, 464 (6th Cir.), cert. denied, 138 S. Ct. 466\n(2017). And neither of those two cases held that § 2244(b)(1) was applicable because neither\ncited the provision for a proposition that was “necessary to the outcome.” See id. (observing\n“that statements which are ‘not necessary to the outcome’ are [not holdings and thus] not binding\non later panels” (quoting United States v. Turner, 602 F.3d 778, 785–86 (6th Cir. 2010)));\nCharles, 180 F.3d at 758 (stating that the federal petitioner was “not entitled to file a successive\n§ 2255 motion to vacate because he seeks permission to file the same claims that have already\nbeen denied on the merits,” but then ruling that petitioner had not, “[i]n any event, . . . made a\nprima facie showing of satisfying either one of the two criteria listed in § 2255”); Liddell,\n722 F.3d at 738 (stating that a successive claim would be “barred” but that the federal movant\nhad in any event failed to satisfy § 2255(h)).\n\n Meanwhile, although at least one other circuit has found § 2244(b)(1) to be applicable to\n§ 2255 movants on policy grounds, see In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016)\n(“Although § 2244(b)(1) explicitly applies to petitions filed under § 2254, which applies to state\nprisoners, it would be odd indeed if Congress had intended to allow federal prisoners to refile\nprecisely the same non-meritorious motions over and over again while denying that right to state\nprisoners.”), the Government is correct, see Appellee’s Br. at 27, that such a reading is an\nunjustifiable contravention of plain statutory text. See, e.g., Mohamad v. Palestinian Auth.,\n566 U.S. 449, 460 (2012) (“[N]o legislation pursues its purposes at all costs, and petitioners’\npurposive argument simply cannot overcome the force of the plain text.” (citation and internal\nquotation marks omitted)).6 We therefore hold that § 2244(b)(1) does not apply to federal\nprisoners like Williams seeking relief under § 2255.\n\n\n 6Even allowing that a truly “absurd” result could justify such a textual departure, see, e.g., Hartford\nUnderwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000), the result here is not so outlandish. AEDPA,\nafter all, was enacted “to further the principles of comity, finality, and federalism,” Williams v. Taylor, 529 U.S. at\n436, and two of those three considerations fall aside when it comes to federal prisoners, whose cases implicate no\nseparate sovereign. Because it is not absurd to understand Congress as having intended to provide a marginally less\nrestrictive regime for federal prisoners (whose § 2255 motions threaten no comity or federalism interests), we accept\nthat “Congress said what it meant and meant what it said” when it drafted § 2244(b)(1). Loughrin, 134 S. Ct. at\n2391.\n\n No. 17-3211 Williams v. United States Page 11\n\n\n 2. Section 2255(h)\n\n Section 2255(h), by contrast, clearly does apply to a federal prisoner like Williams. The\nquestion, then, is whether its substantive requirements pose any jurisdictional bar. “A rule is\njurisdictional ‘[i]f the Legislature clearly states that a threshold limitation on a statute’s scope\nshall count as jurisdictional.’” Gonzalez v. Thaler, 565 U.S. 134, 141–42 (2012) (alteration in\noriginal) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)). Understandably, then,\ncourts generally look first to whether “[t]he terms of the provision” clearly indicate “that the\nprovision was meant to carry jurisdictional consequences,” but they may also look to factors like\na provision’s “placement within the” statute and “the singular characteristics of the review\nscheme that Congress created,” which reflect the statute’s purpose. See Henderson, 562 U.S. at\n438–40; accord Gonzalez v. Thaler, 565 U.S. at 143–44 (looking to statutory text, operation, and\npurpose).\n\n Williams rightly identifies that the closest analogy for this question is to Gonzalez v.\nThaler, in which the Supreme Court analyzed the highly comparable interplay between 28\nU.S.C. § 2253’s certificate-of-appealability (COA) provisions. See 565 U.S. at 137; 28 U.S.C.\n§ 2253(c). There, the Court explained, “the only ‘clear’ jurisdictional language in § 2253(c)\nappears in § 2253(c)(1),” which provides that “an appeal may not be taken” in the absence of a\nCOA. Gonzalez v. Thaler, 565 U.S. at 142 (quoting 28 U.S.C. § 2253(c)(1)). “The parties” had\n“agreed . . . for good reason,” meanwhile, that § 2253(c)(2), which “speaks only to when a COA\nmay issue—upon ‘a substantial showing of the denial of a constitutional right,’” was non-\njurisdictional. Id. at 143 (quoting 28 U.S.C. § 2253(c)(2)). In addition to noting that\n§ 2253(c)(2) lacked “§ 2253(c)(1)’s jurisdictional terms,” the Court explained, “it would be\npassing strange if, after a COA has issued, each court of appeals adjudicating an appeal were\ndutybound to revisit the threshold showing and gauge its ‘substantial[ity]’ to verify its\njurisdiction.” Id. (alteration in original). “That inquiry would be largely duplicative of the\nmerits question before the court.” Id.\n\n No. 17-3211 Williams v. United States Page 12\n\n\n The Court then concluded that § 2253(c)(3) was similarly non-jurisdictional, because\n“[l]ike § 2253(c)(2), it too reflects a threshold condition for the issuance of a COA,” and “does\nnot speak in jurisdictional terms.” Id. (citation omitted). The contrast between provisions like\n§ 2253(c)(1) and the other two subsections “underscore[d]” that “[a] defective COA is not\nequivalent to the lack of any COA.” Id. Moreover, the Court explained, it was “telling . . . that\nCongress placed the power to issue COAs in the hands of a ‘circuit justice or judge’” and that the\ncorresponding requirement “binds only the judge issuing the COA”—which “would only\ncompound the ‘unfai[r] prejudice resulting from the sua sponte dismissals and remands that\njurisdictional treatment would entail.” Id. at 143–44 (alteration in original) (quoting Henderson,\n562 U.S. at 434). And it would, for that matter, “thwart Congress’s intent in AEDPA ‘to\neliminate delays in the federal habeas review process’” to require stage-by-stage vigilance\nregarding satisfaction of the COA threshold conditions, given that “[e]ven if additional screening\nof already-issued COAs for § 2253(c)(3) defects could further winnow the cases before the\ncourts of appeals, that would not outweigh the costs of further delay from the extra layer of\nreview.” Id. at 144–45.\n\n As Williams notes, obtaining authorization to file a second or successive § 2255 motion\nmaps onto this analysis tightly:\n\n Just as the requirement of first obtaining a COA is jurisdictional, so too is the\n requirement that a movant obtain authorization from the court of appeals before\n filing a second or successive § 2255 motion in the district court. Furthermore,\n just as §§ 2253(c)(2) and (3) are not jurisdictional because they merely describe\n when a COA may issue and what the COA should contain, §§ 2255(h)(1) and (2)\n are not jurisdictional either.\n\nAppellant’s Br. at 34; see 28 U.S.C. § 2255(h)(1)–(2). Similarly, the only obligation that\n§ 2255(h) places on the movant is seeking authorization; assessing the § 2255(h) threshold\nconditions themselves is wholly committed to the issuing “panel of the appropriate court of\nappeals.” See id. (“A second or successive motion must be certified as provided in section 2244\nby a panel of the appropriate court of appeals to contain . . . .”). It would thus run afoul of the\ntext’s focus on the issuing panel, impose substantial added delay contrary to Congress’s purpose,\nand risk unfair prejudice to movants who had fully complied with their own obligations to\nrequire each later panel to recommence review of the § 2255(h) threshold conditions.\n\n No. 17-3211 Williams v. United States Page 13\n\n\nWe therefore hold, consistent with Gonzalez v. Thaler, that “[a] defective [authorization] is not\n[jurisdictionally] equivalent to the lack of any [authorization].” See 565 U.S. at 143. Thus (as\nthe Government concedes, Appellee’s Br. at 38), because any shortcomings in Williams’s\nsatisfaction of the § 2255(h) threshold conditions were not jurisdictional, invocation of any such\ndefect was susceptible to forfeiture. See, e.g., Hamer, 138 S. Ct. at 17.\n\n 3. Section 2244(b)(4)\n\n The one possible counterpoint to this analysis is § 2244(b)(4). That subsection, as noted\nabove, provides that “[a] district court shall dismiss any claim presented in a second or\nsuccessive application that the court of appeals has authorized to be filed unless the applicant\nshows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4).\nAlthough the Government does not read it this way, Doc. 48 (Appellee’s Letter of June 14, 2018,\nat 2), the provision could arguably be read as requiring post-authorization vigilance in a way that\nwould connote jurisdictionality.\n\n There are at least two reasons that § 2244(b)(4) does not impose its own jurisdictional bar\nin this case. First, as the Government correctly observes, see id., the provision does not “clearly\nstate[]” a jurisdictional bar, Gonzalez v. Thaler, 565 U.S. at 141 (citation omitted), particularly\ngiven its focus on a single decisionmaker’s review, at a particular stage, of “a threshold\ncondition,” see id. at 143. “And the fact that dismissal is ‘mandatory’ likewise does not change\nthe nonjurisdictional character of this provision.” Doc. 48 (Appellee’s Letter of June 14, 2018,\nat 2) (quoting Henderson, 562 U.S. at 439); see also Thaler, 565 U.S. at 146 (“This Court,\nmoreover, has long ‘rejected the notion that “all mandatory prescriptions, however emphatic are\n. . . properly typed jurisdictional.”’” (quoting Henderson, 562 U.S. at 439)). Rather, “[i]f\nproperly invoked, mandatory claim-processing rules must be enforced, but they may be waived\nor forfeited.” Hamer, 138 S. Ct. at 17. Thus, any failure by or before the district court would at\nleast be waivable and forfeitable; it would not divest us of jurisdiction on appeal.\n\n Second, even if we understand that provision as outlasting the district court’s\ninvolvement in the case and being (when properly raised) “reviewable on appeal in the ordinary\ncourse” see, e.g., Holt v. United States, 843 F.3d 720, 723 (7th Cir. 2016), any jurisdictional\n\n No. 17-3211 Williams v. United States Page 14\n\n\nconcerns are subsumed by the provisions we have already discussed. That is because the\n“requirements of this section” that could conceivably be at issue, see 28 U.S.C. § 2244(b)(4), are\neither those expressed in § 2244 itself—which are either procedurally satisfied or inapplicable—\nor, via § 2244(a) (“No circuit or district judge shall be required to entertain an application . . .\nexcept as provided in section 2255.”), the requirements in § 2255, which are either procedurally\nsatisfied or nonjurisdictional. Thus, because those provisions do not otherwise raise a\njurisdictional problem in this case, neither does § 2244(b)(4). We therefore hold that\n§ 2244(b)(4) does not impose a jurisdictional bar on a federal prisoner like Williams seeking\nrelief under § 2255 either.\n\nC. Whether Williams Is Entitled to Raise a Second or Successive Motion\n\n Just because a provision is not jurisdictional, of course, does not mean that it is\ncompletely discretionary. Instead, as the Government notes, the AEDPA provisions that apply to\nWilliams are “better understood as . . . mandatory claim-processing rule[s].” See Appellee’s Br\nat 27 n.6. Such rules may, by their nature, “be waived or forfeited,” Hamer, 138 S. Ct. at 17,\nand, as the Government acknowledges, it “did not raise these procedural impediments below or\nbefore the panel,” Appellee’s Br. at 38; see also R. 41 (Gov’t’s Response to § 2255 Mot.) (Page\nID #230–39); R. 45 (Gov’t’s Supp. Response) (Page ID #354–60); Appellee’s Panel Br. at 1–2,\n8–12. Thus, as the Government points out, Appellee’s Br. at 38, we may properly treat these\narguments as forfeited, and we do so here. Cf. Elzy v. United States, 205 F.3d 882, 886 (6th Cir.\n2000).\n\n We can now turn to whether Williams has in fact satisfied one of § 2255(h)’s two\nalternative requirements. As we have explained in a comparable case, because this is a second or\nsuccessive motion under § 2255, Williams “needs new law.” Potter, 887 F.3d at 787. “In one\nsense, he has it. Johnson [II] announced a new rule of constitutional law when it invalidated the\nresidual clause, and Welch v. United States, 136 S. Ct. 1257 (2016), made the rule retroactive to\ncases on collateral review.” Potter, 887 F.3d at 787. Williams therefore, under binding\nprecedent, must show that it is more likely than not “that the district court relied only on the\n\n No. 17-3211 Williams v. United States Page 15\n\n\nresidual clause in sentencing” him.7 See id.; see also Dimott v. United States, 881 F.3d 232, 243\n(1st Cir. 2018) (“[T]o successfully advance a Johnson II claim on collateral review, a habeas\npetitioner bears the burden of establishing that it is more likely than not that he was sentenced\nsolely pursuant to ACCA’s residual clause.”); Beeman v. United States, 871 F.3d 1215, 1221–22\n(11th Cir. 2017) (“To prove a Johnson claim, the movant must show that—more likely than\nnot—it was use of the residual clause that led to the sentencing court’s enhancement of his\nsentence.”); but see United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017) (concluding that\nthe movant may proceed with his claim under Johnson II if the sentencing court “may have”\nrelied on the residual clause); United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017)\n(“[W]hen an inmate’s sentence may have been predicated on application of the now-void\nresidual clause and, therefore, may be an unlawful sentence under the holding in Johnson II, the\ninmate has shown that he ‘relies on’ a new rule of constitutional law.”).8 It is not enough for him\n\n 7In Raines v. United States, we interpreted Potter to “stand[] for the proposition that a 28 U.S.C. § 2255\nmovant seeking relief under Johnson must show ‘evidence that the district court relied only on the residual clause\nin’ making the ACCA determination under attack if (1) the movant is bringing a second or successive motion and\n(2) there is evidence that the movant was sentenced under a clause other than the residual clause, such as the\nsentencing judge’s averment that the movant was indeed sentenced under another clause.” 898 F.3d 680, 686 (6th\nCir. 2018). We read Raines’s second condition to limit Potter to cases in which there is affirmative evidence that\nthe sentencing court sentenced the movant under a clause other than the residual clause, the situation confronted in\nPotter itself. See Potter, 887 F.3d at 788 (“[T]he judge who reviewed his § 2255 motion is the same judge who\nsentenced him. It is difficult to think of a better source of information about what happened the first time. Judge\nReeves saw no value to a second sentencing because he sentenced Potter under the enumerated-crimes clause.”).\nWilliams’s case presents no such affirmative evidence. Here, however, because we conclude that Williams satisfies\nPotter’s presumably tougher standard, we need not decide what lesser showing a movant might be required to make\nwhere there is no affirmative evidence that he was sentenced under a different clause than the residual clause.\n 8To the extent that Potter’s phrase “relied only on” may appear to differ from the First and Eleventh\nCircuits’ formulations, see 887 F.3d at 797, the Government argues that “[t]he ‘relied only on’ clarification\nemphasizes the need for the evidence [of reliance on the residual clause] to preponderate” over any evidence of\nreliance on a different clause. Appellee’s Br. at 46. We believe that the Government is correct, in the sense that\nPotter’s test can be satisfied only when there is reason to believe that the residual clause was doing more than fifty\npercent of the sentencing’s judge’s analytical work—that is, only when the residual clause was the decisive clause in\nthe sentencing judge’s rationale.\n To appreciate the meaning of this distinction, imagine two prisoners, each raising Johnson II claims. The\nfirst was sentenced by a judge who explicitly stated on the record: “I conclude that both the elements clause and the\nresidual clause fully justify your sentence.” The second was sentenced by a judge who explicitly stated on the\nrecord: “I conclude that the residual clause fully justifies your sentence, but it is possible that the elements clause\nmight too.” We understand the import of Potter’s “relie[s] only on” clause to be that the first prisoner could not\nraise a second or successive Johnson II claim, whereas the second could, because ultimately the reliance in that case\nwould have been on the residual clause. This approach bears a passing resemblance to how we treat the analytically\nthorny habeas question of whether a state court based a judgment on federal law or on an “independent and adequate\nstate ground,” see Coleman v. Thompson, 501 U.S. 722, 732–35 (1991) (explaining that we may not consider the\nclaim when a state court states “clearly and expressly” that state law is doing just as much or more work than federal\n\n No. 17-3211 Williams v. United States Page 16\n\n\nto show simply that “the sentencing court may have relied on the residual clause.” Potter, 887\nF.3d at 788.\n\n The parties point to two sources of evidence for assessing whether a movant was\nsentenced for a relevant predicate conviction under the ACCA’s residual clause: “1) the original\nsentencing proceedings; and 2) the relevant legal background at the time of the sentencing.”\nAppellant’s Br. at 40; accord Appellee’s Br. at 49 (“Once again, Potter is instructive. It\nrecognized that there are two primary sources of material that may be consulted: (i) the\nsentencing record, and (ii) case law that existed at the time of sentencing.”). This list is\nunderinclusive, even just drawing from Potter. In fact, while we agree that those two sources of\nevidence are well-established and helpful, Potter and cases from our sister circuits reveal at least\nfive places that courts choose to look:\n\n (1) The sentencing record\n (2) The legal background\n (3) Informed decisionmakers\n (4) Nature of the predicate offense\n (5) Later legal developments (at least if highly predictable)\n\nSee Potter, 887 F.3d at 788; Dimott, 881 F.3d at 240–41; United States v. Taylor, 873 F.3d 476,\n480–82 (5th Cir. 2017); Beeman, 871 F.3d at 1224 & nn.4–5; United States v. Snyder, 871 F.3d\n1122, 1128–29 (10th Cir. 2017). We consider each in turn.\n\n\n\nlaw in its analysis, id. at 733–34 (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)), whereas we presume the\nopposite “when the [state-court] decision ‘fairly appears to rest primarily on federal law, or to be interwoven with\nthe federal law, and when the adequacy and independence of any possible state law ground is not clear from the face\nof the opinion,’” id. at 735 (quoting Michigan v. Long, 463 U.S. 1032, 1040–41 (1983))). Thus, in somewhat the\nsame way that a habeas petitioner cannot obtain review when he can prove no more than that federal law\nsupplemented the independently sufficient state-law rationale that the state court gave, a movant under Potter cannot\nshow “that the district court relied only on the residual clause in sentencing” him when he can prove no more than\nthat the residual clause supplemented an independently sufficient reliance on one of the other two clauses. See\nPotter, 887 F.3d at 787.\n Of course, determining on which clause or clauses the sentencing judge relied will often hinge on the legal\nfiction of attempting to reconstruct what the sentencing judge must have thought based on other, objective evidence.\nSee, e.g., Potter, 887 F.3d at 788; Dimott, 881 F.3d at 240–41; United States v. Taylor, 873 F.3d 476, 480–82 (5th\nCir. 2017); Beeman, 871 F.3d at 1224 & nn.4–5; United States v. Snyder, 871 F.3d 1122, 1128–29 (10th Cir. 2017).\nWe discuss below, in light of Potter and persuasive authority from other circuits, how to make that objective\nassessment in this case.\n\n No. 17-3211 Williams v. United States Page 17\n\n\n 1. Sentencing Record\n\n Virtually all courts, including ours, look to a prisoner’s sentencing record. See Potter,\n887 F.3d at 788; see also Dimott, 881 F.3d at 240; Beeman, 871 F.3d at 1224 & n.4; Snyder, 871\nF.3d at 1128. But this source is both the simplest and least helpful in cases like this one because,\nas all agree, the record itself offers no guidance. See Appellant’s Br. at 41; Appellee’s Br. at 5,\n53. Williams cannot rely on the sentencing record to meet a heightened burden for invoking\nJohnson II.\n\n 2. Legal Background\n\n Most courts also look, as we do, to the operative legal background. See Potter, 887 F.3d\nat 788; see also Taylor, 873 F.3d at 482; Beeman, 871 F.3d at 1224 & n.5; Snyder, 871 F.3d at\n1129. In Snyder, for example, as the parties observe, the Tenth Circuit looked to “a ‘snapshot’ of\nwhat the controlling law was at the time of sentencing.” 871 F.3d at 1129. Reasoning that the\nSupreme Court’s rationale in Taylor v. United States, 495 U.S. 575, 599, 602 (1990), “would\nhave [left] little dispute at the time of Snyder’s sentencing that his two Wyoming burglary\nconvictions involving occupied structures fell within the scope of the ACCA’s enumerated\ncrimes clause,” the court rejected Snyder’s claim under Johnson II. Snyder, 871 F.3d at 1229.\nPotter, similarly, pointed to cases from “the time” that had identified Georgia burglary as a\nqualifying ACCA predicate under the enumerated-crimes clause in rejecting Potter’s petition.\n887 F.3d at 788.\n\n By contrast, in Taylor, the Fifth Circuit, while not adopting a particular standard burden\nfor Johnson II petitioners, concluded that the petitioner there, Taylor, could rely on Johnson II\nbecause “there was precedent suggesting that Taylor’s third predicate conviction could have\napplied only under the residual clause.” 873 F.3d at 482 (citing United States v. Gracia-Cantu,\n302 F.3d 308, 311–13 (5th Cir. 2002)). “Theoretically,” the court explained, “the district court\nmistakenly could have been thinking of the elements clause when sentencing Taylor.” Id. But it\nnevertheless refused to “hold a defendant responsible for what may or may not have crossed a\njudge’s mind during sentencing.” Id.\n\n No. 17-3211 Williams v. United States Page 18\n\n\n Williams’s case is more like Taylor than it is like Snyder or Potter. Here, as Williams\npoints out, Appellant’s Br. at 43, there was only one case at the time of Williams’s sentencing\nthat could have informed his sentencing: United States v. Calloway, 189 F. App’x 486 (6th Cir.\n2006). Although that case involved Ohio aggravated assault under Ohio Rev. Code § 2903.12\nrather than § 2903.11 and the Guidelines rather than the ACCA, those are distinctions without\ndifferences: Ohio aggravated assault is functionally “identical” to Ohio felonious assault,\nAnderson, 695 F.3d at 402, and the relevant Guidelines provision was also functionally identical,\nsee U.S.S.G. § 4B1.2(a) (2006); United States v. Patterson, 853 F.3d 298, 305 (6th Cir.), cert.\ndenied, 138 S. Ct. 273 (2017). The language from our decision, meanwhile, is telling:\n\n Calloway argues that aggravated assault is not a predicate crime of violence as a\n defendant may cause physical harm without the use, attempted use or threatened\n use of physical force as required by U.S.S.G. Section 4B1.2(a)(1).\n Calloway’s argument that the aggravated assault is not a crime of violence\n is without merit. There is no question that causing or attempting to cause physical\n harm presents a serious risk of physical injury to another under Section\n 4B1.2(a)(2) of the Sentencing Guidelines.\n\nId. at 491. In other words, Calloway had argued that his crime did not qualify under the\nelements clause, and we rejected his argument because his crime did qualify under the residual\nclause. See id. By expressly endorsing that one qualifying clause, we at the very least suggested\nstrongly that the residual clause was a better justification than the elements clause. Cf. NLRB v.\nSW Gen., Inc., 137 S. Ct. 929, 940 (2017) (discussing the expressio unius canon). Therefore,\nboth in light of the methods that other courts have adopted and the “presumption in the law that a\ndistrict court knows and applies the law correctly,” Appellee’s Br. at 51 (quoting United States v.\nGale, 468 F.3d 929, 941 (6th Cir. 2006)), we presume that when Judge Dowd sentenced\nWilliams, Calloway pointed him to the residual clause.\n\n Notably, the Government failed to offer a response to Calloway either in its briefing or at\noral argument. Although that was enough to forfeit this issue, see, e.g., U.S. ex rel. Marlar v.\nBWXT Y-12, LLC, 525 F.3d 439, 450 n.6 (6th Cir. 2008), the Government did belatedly address\nthe issue in a letter it sent to the en banc court following oral argument, see Doc. 48 (Appellee’s\nLetter of June 14, 2018, at 1). Even if we were not to deem the Government’s response on this\nscore forfeited, its arguments are unavailing. First, the Government argues that “the residual-\n\n No. 17-3211 Williams v. United States Page 19\n\n\nclause discussion [in Calloway] was not necessary to the decision because the offense was\nenumerated in the commentary.” Id. But that does not change the guidance that Calloway would\nhave offered Judge Dowd in sentencing Williams under the ACCA, because the offense was not\nenumerated for ACCA purposes. See 18 U.S.C. § 924(e). Second, the Government argues,\n“even if [Calloway] could be read to hold that the residual clause provides a basis for classifying\nthis offense as a crime of violence, it does not hold that the residual clause is the only basis for\nthat conclusion.” Doc. 48 (Appellee’s Letter of June 14, 2018, at 1). But that too is beside the\npoint because Williams’s challenge here is to prove that the residual clause was more likely than\nnot the decisive clause on which Judge Dowd relied—not that it is impossible to imagine an\nalternate universe in which he relied on the elements clause instead. Thus, if Calloway was the\nonly case around offering any guidance—and we find that it was—that suggests that it is more\nlikely than not that Judge Dowd relied on the residual clause rather than the elements clause.\n\n It is also true, moreover, that the categorical shortcomings of Ohio Rev. Code § 2903.11\nshould have been just as identifiable in 2006 as they are today. Much as the Tenth Circuit\npointed out in Snyder, 871 F.3d at 1229, the dictates of the categorical approach had been clear\nsince the Supreme Court’s 1990 Taylor decision, see 495 U.S. at 588–90. And as the Supreme\nCourt emphasized in its Johnson I ruling, the meaning of “force” in the context of the ACCA has\nalso long been recognized:\n\n We think it clear that in the context of a statutory definition of “violent felony,”\n the phrase “physical force” means violent force—that is, force capable of causing\n physical pain or injury to another person. See Flores v. Ashcroft, 350 F.3d 666,\n 672 (7th Cir. 2003) (Easterbrook, J.). Even by itself, the word “violent” in\n § 924(e)(2)(B) connotes a substantial degree of force. Webster’s Second 2846\n (defining “violent” as “[m]oving, acting, or characterized, by physical force, esp.\n by extreme and sudden or by unjust or improper force; furious; severe;\n vehement . . .”); 19 Oxford English Dictionary 656 (2d ed. 1989)\n (“[c]haracterized by the exertion of great physical force or strength”); Black’s\n 1706 (“[o]f, relating to, or characterized by strong physical force”). When the\n adjective “violent” is attached to the noun “felony,” its connotation of strong\n physical force is even clearer. See id. at 1188 (defining “violent felony” as “[a]\n crime characterized by extreme physical force, such as murder, forcible rape, and\n assault and battery with a dangerous weapon”); see also United States v. Doe, 960\n F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (“[T]he term to be defined, ‘violent\n felony,’ . . . calls to mind a tradition of crimes that involve the possibility of more\n closely related, active violence”).\n\n No. 17-3211 Williams v. United States Page 20\n\n\nJohnson I, 559 U.S. at 140–41 (non-Bluebook alterations in original). Because Williams’s\n“sentencing proceeding occurred against the backdrop of the Supreme Court’s decision in\nTaylor” and the longstanding legal and linguistic concepts discussed in Johnson I, see Snyder,\n871 F.3d at 1129, and given that we presume “that a district court knows and applies the law\ncorrectly,” Appellee’s Br. at 51 (quoting Gale, 468 F.3d at 941), it is even more likely that Judge\nDowd would have steered clear of the categorical red flags in Ohio Rev. Code § 2903.11’s\nelements. See, e.g., Burris, 912 F.3d at 397–98; Perry, 703 F.3d at 910; Anderson, 695 F.3d at\n403–06 (6th Cir. 2012) (White, J., concurring). In sum, it seems clear that Judge Dowd more\nlikely than not relied decisively on the residual clause in determining that Williams’s conviction\nunder Ohio Rev. Code § 2903.11 qualified as an ACCA predicate.\n\n 3. Informed Decisionmakers\n\n A third source of evidence that we and other courts have looked to is whether the district\njudge who sentenced a petitioner is the same district judge who evaluated that petitioner’s § 2255\nmotion. See Potter, 887 F.3d at 788 (“On top of that, the judge who reviewed his § 2255 motion\nis the same judge who sentenced him. It is difficult to think of a better source of information\nabout what happened the first time around.”); see also Dimott, 881 F.3d at 237 (“On collateral\nreview, the district court judge in both cases (who had also served as the sentencing judge) found\nthat Dimott and Collamore had earlier been sentenced pursuant to the ACCA’s enumerated\nclause. . . . Although these findings were made during the collateral review process, and not\nexpressly stated at the time of sentencing, we give them due weight because the habeas judge\nwas describing his own decisions at sentencing.”); cf. Snyder, 871 F.3d at 1128 (“In other words,\nthe district court found, as a matter of historical fact, that it did not apply the ACCA’s residual\nclause in sentencing Snyder under the ACCA.”).\n\n This source of evidence is not available here: while Williams was sentenced by Judge\nDowd, see, e.g., R. 18 (Sentencing Mem. Op. at 1) (Page ID #34), his § 2255 motion was\nconsidered below by Judge Oliver, R. 49 (Dist. Ct. Order at 1) (Page ID #397), and Judge Dowd\nhas since passed away. While this source casts no affirmative light on the question at hand, it\ndistinguishes Williams’s petition from Potter and Dimott, in which the reviewing courts cited\nthat source of evidence to buttress their rationales for denying relief.\n\n No. 17-3211 Williams v. United States Page 21\n\n\n 4. Nature of the Predicate Offense\n\n Some courts also look to the nature of the predicate offense to help piece together a\ndistrict court’s sentencing decision. For example, in Potter, we pointed to the fact that the crime\nat issue was Georgia burglary as additional evidence that the petitioner was unlikely to have been\nsentenced under the residual clause. See 887 F.3d at 788–89 (listing “the specification of\n‘burglary’ in the enumerated-crimes clause of the Act,” id. at 788, as one of the four factors on\nwhich this court was basing its conclusion). Likewise, in Holt v. United States, 843 F.3d 720\n(7th Cir. 2016), a case cited by Potter, the Seventh Circuit considered a Johnson II movant who\nsought to contest the applicability of his prior conviction for Illinois burglary. Id. at 721. In\nrejecting Holt’s petition, however, the court specifically distinguished Holt from a petitioner like\nWilliams. After reciting the clauses of the ACCA, the court explained:\n\n [T]he residual clause . . . contains the only language that Johnson held\n unconstitutionally vague. The possibility that after Johnson defendants may have\n a stronger incentive to contest the classification of convictions under the elements\n clause—in the hope of moving them to the residual clause and thus eliminating\n them from the set of violent felonies—has nothing to do with Holt’s situation.\n His burglary conviction was classified as a violent felony under the burglary\n clause. Nothing in Johnson, Welch, or Stanley [an earlier Seventh Circuit case]\n affects the proper treatment of burglary convictions. So Holt’s second collateral\n attack cannot rest on Johnson.\n\nId. at 723.\n\n This language suggests that courts might reasonably treat a conviction for an ostensibly\nenumerated crime as allowing somewhat greater certainty about a sentencing judge’s\ndecisionmaking than would a crime at the fault line between the elements clause and the residual\nclause. See id. Regardless, Williams was not convicted of an ostensibly enumerated crime, and\nin any event he meets his burden based on the legal background alone. Nevertheless, we note\nthat this factor also distinguishes Williams’s case from Potter, 887 F.3d at 787 (Georgia\nburglary), as well as from Dimott, Snyder, and Holt, which all involved state burglary charges,\nsee Dimott, 881 F.3d at 234 (Maine burglary); Snyder, 871 F.3d at 1125 (Wyoming burglary);\nHolt, 843 F.3d at 720 (Illinois burglary).\n\n No. 17-3211 Williams v. United States Page 22\n\n\n 5. Later Legal Developments\n\n Finally, while some of the courts that look to “a ‘snapshot’ of what the controlling law\nwas at the time of sentencing” purposefully exclude from that analysis “post-sentencing\ndecisions that may have clarified or corrected pre-sentencing decisions,” Snyder, 871 F.3d at\n1129, others have also consulted after-the-fact case law. In Dimott, for example, the First Circuit\nexpressly relied on one of its own recent opinions on the ground that the recent opinion’s\n“holding [was] a ‘straightforward’ application of the 1990 Supreme Court decision in Taylor v.\nUnited States, 495 U.S. 575 (1990).” Dimott, 881 F.3d at 241 (quoting United States v.\nDuquette, 778 F.3d 314, 317 (1st Cir. 2015)). Likewise, though less pivotally, we in Potter\nobserved that “[c]ases decided after [Potter’s] sentencing” confirmed that Georgia burglary\nqualified under the enumerated-crimes clause, though it offered this observation only after noting\nthat cases that preceded Potter’s sentencing had said so, too. 887 F.3d at 788. Here, however,\nwhile we ruled in Anderson that Ohio felonious assault qualified under the elements clause in\n2012, 695 F.3d at 400, 402, we then ruled (the very next year) in Perry, without mentioning\nAnderson, that the (functionally identical) crime of Ohio aggravated assault qualified only under\nthe residual clause, see Perry, 703 F.3d at 910. Thus, as the Government concedes, “the after-\nannounced decisions do not support a presumption one way or the other that the sentencing court\nrelied on the elements or the residual clause in this case.” Appellee’s Br. at 54.\n\n ***\n\n In short, surveying the various sources of evidence that we can draw from, the balance\ntips in Williams’s favor. Williams’s sentencing record and later legal developments provide no\nguidance one way or the other, and there is no informed decisionmaker on whose recollection we\ncan draw. But the one case that informs the legal background at the time of Williams’s\nsentencing points appreciably toward the residual clause, and the nature of the predicate offense\nat the very least does not vitiate that conclusion. Williams has therefore met his burden in\nproving that Judge Dowd more likely than not relied on the residual clause in deeming his\nconviction under Ohio Rev. Code § 2903.11(A) an ACCA predicate. Williams is accordingly\nentitled under § 2255(h)(2) to raise a second or successive motion.\n\n No. 17-3211 Williams v. United States Page 23\n\n\nD. Whether Williams’s ACCA Sentence Can Stand\n\n Williams’s conviction under Ohio Rev. Code § 2903.11(A) can no longer qualify as an\nACCA predicate under the residual clause. Johnson II, 135 S. Ct. at 2557. The only question\nleft is whether it can nevertheless qualify as an ACCA predicate under the elements clause. See\n18 U.S.C. § 924(e)(2)(B)(i); see also, e.g., Van Cannon v. United States, 890 F.3d 656, 661 (7th\nCir. 2018) (“To win § 2255 relief, Van Cannon had to establish a Johnson error and that the error\nwas harmful. The government confessed the Johnson error . . . . The only remaining dispute\nconcerned the question of prejudice.”). For the reasons provided by our en banc court in Burris,\nOhio Rev. Code § 2903.11(A)(1) is a categorical mismatch with the functionally identical\nelements clauses of both the ACCA and the Guidelines. Burris, 912 F.3d at 399.\n\n Williams was convicted of violating Ohio Rev. Code § 2903.11(A), and it is undisputed\nat this stage that none of the Shepard documents suggests that he was in fact convicted under a\nparticular prong. See R. 39-3 (Indictment and Journal Entry) (Page ID #227–28); R. 48-1\n(Sentencing Tr. at 7–8, 11) (Page ID #389–90, 393); Appellant’s Br. at 16. That conviction\ntherefore cannot validly serve as an ACCA predicate. Because that leaves him with only two\nqualifying ACCA predicates, his sentence as an armed career criminal no longer comports with\nfederal law. See 18 U.S.C. § 924(e)(1); PSR at 1, 7–8; R. 1 (Indictment) (Page ID #3–4).\n\n III. CONCLUSION\n\n Because Williams has shown that it is more likely than not that his sentencing judge\ndecisively relied on the residual clause in deeming his Ohio felonious assault conviction an\nACCA predicate, he is entitled to raise a second or successive motion under § 2255 in light of\nJohnson II. Because neither the residual clause nor the elements clause can now justify deeming\nthat conviction an ACCA predicate, Williams’s federal prison sentence as an armed career\ncriminal is no longer justified under federal law. We accordingly VACATE Williams’s sentence\nand REMAND for resentencing.\n\n No. 17-3211 Williams v. United States Page 24\n\n\n _________________\n\n CONCURRENCE\n _________________\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Brian D. WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0127p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n BRIAN D. WILLIAMS, ┐\\n Petitioner-Appellant, │\\n │\\n > No. 17-3211\\n v. │\\n │\\n │\\n UNITED STATES OF AMERICA, │\\n Respondent-Appellee. │\\n ┘\\n\\nOn Remand from the En Banc Court of the United States Court of Appeals for the Sixth Circuit.\\n United States District Court for the Northern District of Ohio at Cleveland.\\n Nos. 1:06-cr-00244-1; 1:16-cv-00520—Solomon Oliver Jr., District Judge.\\n\\n Decided and Filed: June 11, 2019\\n\\n Before: MERRITT, MOORE, and ROGERS, Circuit Judges.\\n\\n MOORE, J., delivered the opinion of the court in which MERRITT and ROGERS, JJ.,\\njoined. MERRITT, J. (pg. 24), delivered a separate concurring opinion.\\n _________________\\n\\n OPINION\\n _________________\\n\\n KAREN NELSON MOORE, Circuit Judge. This case returns to us on remand from our\\nen banc court in light of the en banc court’s decision in United States v. Burris, 912 F.3d 386\\n(6th Cir. 2019) (en banc). Since we last addressed Petitioner-Appellant Brian Williams’s\\ncollateral attack on his federal sentence under the Armed Career Criminal Act (“ACCA”),\\n18 U.S.C. § 924(e); see Williams v. United States, 875 F.3d 803 (6th Cir. 2017), and while\\ngranting Williams’s petition for rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), our court has\\nraised concerns regarding Williams’s ability to raise a cognizable motion for relief under\\n28 U.S.C. § 2255 in light of various provisions constraining collateral review. In this opinion,\\n\\n No. 17-3211 Williams v. United States Page 2\\n\\n\\nper the en banc court’s remand, we address those concerns in light of the comprehensive\\nargument before the en banc court and then proceed to address the merits of Williams’s motion\\nin light of Burris. Because Williams qualifies for review under § 2255 and because no ACCA\\nprovision justifies his sentence, we VACATE Williams’s sentence and REMAND for\\nresentencing.\\n\\n I. BACKGROUND\\n\\nA. Williams’s Conviction for Ohio Felonious Assault\\n\\n In early 2000, Williams was indicted for, pleaded guilty to, and was convicted of\\nattempted felonious assault in violation of Ohio Rev. Code § 2903.11(A). R. 39-3 (State\\nIndictment and Journal Entry) (Page ID #227–28); R. 48-1 (State Sentencing Tr. at 7–8, 11)\\n(Page ID #389–90, 393). Ohio Rev. Code § 2903.11(A) provides:\\n\\n No person shall knowingly do either of the following:\\n (1) Cause serious physical harm to another . . . ;\\n (2) Cause or attempt to cause physical harm to another . . . by means of a\\n deadly weapon or dangerous ordnance.\\n\\nOhio law in turn defines “serious physical harm,” as included in § 2903.11(A)(1), to include\\n“[a]ny mental illness or condition of such gravity as would normally require hospitalization or\\nprolonged psychiatric treatment.” Ohio Rev. Code § 2901.01(A)(5)(a). As Williams points out,\\nnone of the Shepard documents surrounding that conviction, see Shepard v. United States,\\n544 U.S. 13, 26 (2005), makes clear which of the two prongs of § 2903.11(A) Williams was\\nconvicted of having violated. Appellant’s Br. at 16.1 The Government does not dispute this\\ncharacterization of the Shepard documents.\\n\\nB. Williams’s Sentencing as an Armed Career Criminal\\n\\n In 2006, Williams was indicted for, pleaded guilty to, and was convicted of being a felon\\nin possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in the U.S. District Court for the\\nNorthern District of Ohio. R. 1 (Indictment) (Page ID #3–4); R. 19 (Judgment at 1) (Page ID\\n\\n 1We use this designation to reference the parties’ supplemental briefs before the en banc court. We use the\\nlonger designation “Appell[ant/ee]’s Panel Br.” to refer to the parties’ prior submissions to this panel.\\n\\n No. 17-3211 Williams v. United States Page 3\\n\\n\\n#39). The ACCA applied then (and continues to apply) to anyone convicted of violating\\n§ 922(g) who “has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1).\\nThe probation department recommended that Williams be sentenced as an armed career criminal\\nunder the ACCA, and the sentencing judge, Judge Dowd, agreed. See R. 18 (Sentencing Mem.\\nOp. at 4) (Page ID #37); R. 25 (Sentencing Tr. at 2) (Page ID #116); Presentence Report (“PSR”)\\nat 1, 7–8. Williams’s 2000 conviction for attempted felonious assault under Ohio Rev. Code\\n§ 2903.11(A) was one of the three prior convictions on which the probation department—and,\\nultimately, Judge Dowd—based this conclusion. See PSR at 1, 7–8; see also R. 1 (Indictment)\\n(Page ID #3–4).\\n\\n At the time, the ACCA defined “violent felony” to include any felony punishable by over\\none year of imprisonment that either:\\n\\n (i) has as an element the use, attempted use, or threatened use of physical force\\n against the person of another [“elements clause”]; or\\n (ii) is burglary, arson, or extortion, involves use of explosives [“enumerated-\\n crimes clause”], or otherwise involves conduct that presents a serious\\n potential risk of physical injury to another [“residual clause”] . . . .\\n\\n18 U.S.C. § 924(e)(2)(B). The parties agree that neither Judge Dowd nor probation specified the\\ngrounds on which Williams’s 2000 conviction qualified as an ACCA predicate and that nothing\\nelse in the sentencing record sheds further light. See Appellant’s Br. at 41; Appellee’s Br. at 5,\\n53. Williams was sentenced to 180 months in prison. R. 19 (Judgment at 2) (Page ID #40).\\n\\nC. Prior § 2255 Petitions and Intervening Legal Developments\\n\\n Williams soon began seeking postconviction relief. In 2007, he moved pro se to vacate\\nhis sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel, lack of federal\\njurisdiction for failure to satisfy the interstate-commerce element, and double jeopardy. R. 21\\n(2007 Mot. to Vacate at 4–7) (Page ID #55–58). The district court denied his motion. R. 29\\n(Dist. Ct. Op. & Order) (Page ID #185–87).\\n\\n In 2010, Williams again moved pro se to vacate his sentence under § 2255. In that\\nmotion, he maintained that § 924(e)(1) did “not apply to him,” arguing that at least one of his\\nprior convictions did not “fit the criteria for application [of the] 924(e)(1) enhancement” and\\n\\n No. 17-3211 Williams v. United States Page 4\\n\\n\\nciting the Supreme Court’s recent ruling that the ACCA’s “phrase ‘physical force’ means violent\\nforce.” See R. 31 (2010 Mot. to Vacate at 1–2) (Page ID #191–92); Curtis Johnson v. United\\nStates (“Johnson I”), 559 U.S. 133, 140 (2010). Williams also argued that the sentence imposed\\non him violated United States v. Booker, 543 U.S. 220 (2005), and his right to a jury trial. R. 31\\n(2010 Mot. to Vacate at 2–3) (Page ID #192–93). The district court transferred the motion to\\nthis court for authorization to file a second or successive motion, R. 32 (Transfer Order) (Page\\nID #195), and we denied Williams’s request, R. 33 (2010 CA6 Order) (Page ID #196–97).\\n\\n In 2012, a panel of our court ruled in United States v. Anderson, 695 F.3d 390 (6th Cir.\\n2012), that felonious assault under Ohio Rev. Code § 2903.11(A) qualifies as a violent felony\\nunder the ACCA’s elements clause. Id. at 402. The following year, a separate panel ruled that\\naggravated assault under Ohio Rev. Code § 2903.12(A), which is functionally “identical” to the\\nfelonious assault statute, Anderson, 695 F.3d at 402, qualifies as a violent felony under the\\nACCA’s residual clause. United States v. Perry, 703 F.3d 906, 910 (6th Cir. 2013). Our court\\ndid not cite Anderson in that decision.\\n\\n In 2013, Williams again sought authorization from our court to file a second or\\nsuccessive motion under § 2255, “seeking to pursue the following grounds for relief:\\n(1) ineffective assistance of counsel during plea bargaining; and (2) the unconstitutional\\napplication of 18 U.S.C. § 922(g)(1) to his case.” R. 34 (2013 CA6 Order) (Page ID #199–200).\\nWe again denied his request. Id. (2013 CA6 Order at 2) (Page ID #200).\\n\\n In 2014, Williams filed a third pro se motion in the district court under § 2255. R. 35\\n(2014 Mot. to Vacate at 1) (Page ID #201). In that motion, Williams argued that Descamps v.\\nUnited States, 570 U.S. 254 (2013), was retroactive and had established that his having been\\nsentenced under the ACCA was “in conflict with the jury trial right as explained in Apprendi v.\\nNew Jersey, 530 U.S. 466 (2000).” R. 35 (2014 Mot. to Vacate at 1) (Page ID #201). The\\ndistrict court denied his motion. R. 36 (Dist. Ct. Order at 2) (Page ID #206).\\n\\nD. Johnson II and the § 2255 Petition at Issue Here\\n\\n In June 2015, in Samuel Johnson v. United States (“Johnson II”), 135 S. Ct. 2551 (2015),\\nthe Supreme Court ruled that the residual clause of the ACCA was unconstitutionally vague. Id.\\n\\n No. 17-3211 Williams v. United States Page 5\\n\\n\\nat 2557. In March 2016, this time represented by counsel, Williams moved (again in the district\\ncourt) to vacate his sentence under § 2255 in light of the Supreme Court’s due-process-based\\nruling in Johnson II. R. 39 (2016 Mot. to Vacate at 1, 3) (Page ID #210, 212). That April, the\\nSupreme Court clarified that Johnson II was “a substantive decision and so has retroactive effect\\n. . . in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1265 (2016). The\\ndistrict court, meanwhile, transferred Williams’s § 2255 motion to this court, R. 42 (Transfer\\nOrder) (Page ID #240–41), and this court, noting that “much has changed in the four years since\\nwe decided Anderson,” granted Williams authorization, R. 43 (2016 CA6 Order at 4, 6) (Page ID\\n#245, 247). Both we and the district court, however, rejected Williams’s claim on the merits,\\nreasoning that Anderson had not been abrogated and thus remained controlling, regardless of its\\nultimate wisdom. See Williams, 875 F.3d at 807 (opinion of Rogers, J.); id. (Moore, J.,\\nconcurring in the judgment); R. 49 (Dist. Ct. Order at 14) (Page ID #410). Our court granted\\nrehearing en banc, 882 F.3d 1169 (6th Cir. 2018), and later issued letters directing the parties to\\naddress in their briefing the court’s ability to entertain Williams’s clearly second-in-time—and\\npotentially duplicative—motion for postconviction relief under § 2255. See Doc. 33 (Letter of\\nMar. 9, 2018); Doc. 34 (Letter of Mar. 20, 2018). Oral argument was heard by the en banc court\\non June 13, 2018, during which time we probed both parties further on the issues raised by our\\nbriefing letters.\\n\\n That same day, we also heard oral argument en banc in Burris, in which we probed in\\nmore detail whether felonious assault under Ohio Rev. Code § 2903.11(A)(1) qualifies as a\\nviolent felony under the ACCA or (for our purposes identical) elements clause of the United\\nStates Sentencing Guidelines (“Guidelines” or “U.S.S.G”). Compare U.S.S.G. § 4B1.2(a)(1),\\nwith 18 U.S.C. § 924(e)(2)(B)(i). In our recently released Burris decision, the en banc court\\nreasoned that Ohio Rev. Code § 2903.11(A)(1) is a categorical mismatch with the ACCA’s and\\nGuidelines’ elements clauses, notwithstanding Anderson. Following that decision, the en banc\\ncourt in this (Williams) case ruled that Anderson has been overruled and remanded this case to\\nour panel for further proceedings in light of that determination. We thus proceed to consider\\nWilliams’s case.\\n\\n No. 17-3211 Williams v. United States Page 6\\n\\n\\n II. DISCUSSION\\n\\n This case on remand requires us to consider (1) whether Williams is entitled to\\nconsideration of his claims on collateral review and, if he is, (2) whether he is in fact entitled to\\nrelief. Answering both questions in the affirmative, we VACATE Williams’s sentence and\\nREMAND for resentencing.\\n\\nA. AEPDA\\n\\n The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.\\n104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code), was\\nenacted “to further the principles of comity, finality, and federalism.” Williams v. Taylor,\\n529 U.S. 420, 436 (2000). In order to do that, AEDPA plainly “restrict[ed] the availability of\\nrelief to habeas petitioners” in general, Felker v. Turpin, 518 U.S. 651, 664 (1996), and it\\n“greatly restrict[ed] the power of federal courts to award relief to state prisoners who file second\\nor successive habeas corpus applications,” Tyler v. Cain, 533 U.S. 656, 661 (2001).\\nNevertheless, despite its clear goals, “in a world of silk purses and pigs’ ears, the Act is not a silk\\npurse of the art of statutory drafting.” Lindh v. Murphy, 521 U.S. 320, 336 (1997).\\n\\n One provision, 28 U.S.C. § 2254, applies to prisoners in state custody; another applies to\\nprisoners in federal custody, 28 U.S.C. § 2255. A third section, 28 U.S.C. § 2244, provides\\nbroader guidance. For one, that section allows federal judges to dismiss duplicative habeas\\nclaims brought by federal prisoners that have already been adjudicated on the merits by a federal\\ncourt, but it includes the express caveat “except as provided in section 2255.” Id. § 2244(a); see\\nalso In re Hanserd, 123 F.3d 922, 930 (6th Cir. 1997). Second, it states that “[a] claim presented\\nin a second or successive habeas corpus application under section 2254 that was presented in a\\nprior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Third, it mandates that prisoners\\nseeking to file a “second or successive” habeas application first obtain “an order authorizing the\\ndistrict court to consider the application,” id. § 2244(b)(3)(A), and it sets out the procedures for\\nobtaining such authorization, id. § 2244(b)(3)(A)–(D). Fourth, it requires district courts to\\n“dismiss any claim presented in a second or successive application that the court of appeals has\\n\\n No. 17-3211 Williams v. United States Page 7\\n\\n\\nauthorized to be filed unless the applicant shows that the claim satisfies the requirements of this\\nsection.” Id. § 2244(b)(4).\\n\\n Section 2255, meanwhile, refers back to § 2244 in applying the following provision to\\nfederal prisoners:\\n\\n A second or successive motion must be certified as provided in section 2244 by a\\n panel of the appropriate court of appeals to contain—\\n\\n (1) newly discovered evidence . . . or\\n (2) a new rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable.\\n\\n28 U.S.C. § 2255(h). The threshold issue in this case is whether our court is permitted to\\nadjudicate Williams’s claim in light of these provisions.\\n\\nB. Jurisdiction\\n\\n “[F]ederal courts have an independent obligation to ensure that they do not exceed the\\nscope of their jurisdiction, and therefore [we] must raise and decide jurisdictional questions that\\nthe parties either overlook or elect not to press.” Henderson v. Shinseki, 562 U.S. 428, 434\\n(2011); see also Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir. 1998).\\nHere, the en banc court did raise such jurisdictional issues, see Doc. 33 (Letter of Mar. 9, 2018);\\nDoc. 34 (Letter of Mar. 20, 2018), and they were argued before the en banc court. For its part,\\nthe Government conceded that none of the AEDPA provisions at issue here is jurisdictional.\\nAppellee’s Br. at 27 & n.6, 38. The Government’s reasoning is helpful and persuasive, but we\\n“have an independent obligation to” ensure our own jurisdiction, see Henderson, 562 U.S. at\\n434; Douglas, 150 F.3d at 607, and jurisdiction is not the kind of thing that can be waived or\\nforfeited, Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017); Mitchell v.\\nMaurer, 293 U.S. 237, 244 (1934).\\n\\n We now address the threshold statutory questions that were argued before the en banc\\ncourt and conclude that there is no threshold defect here. Two AEDPA provisions raise potential\\nsuch concerns: § 2244(b)(1) (“A claim presented in a second or successive habeas corpus\\napplication under section 2254 that was presented in a prior application shall be dismissed.”),\\n\\n No. 17-3211 Williams v. United States Page 8\\n\\n\\nand § 2255(h) (“A second or successive motion must be certified as provided in section 2244 by\\na panel of the appropriate court of appeals to contain (1) newly discovered evidence . . . or (2) a\\nnew rule of constitutional law . . . .”).2 We conclude that § 2244(b)(1) does not apply to a federal\\nprisoner like Williams3 and that the substantive requirements of § 2255(h) are nonjurisdictional.4\\n\\n 1. Section 2244(b)(1)\\n\\n With regard to § 2244(b)(1), we start and end with the text. Section § 2244(b)(1) reads:\\n“A claim presented in a second or successive habeas corpus application under section 2254 that\\nwas presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1) (emphasis\\nadded). In other words, “[t]he limitations imposed by § 2244(b) apply only to a ‘habeas corpus\\napplication under § 2254,’ that is, an ‘application for a writ of habeas corpus on behalf of a\\nperson in custody pursuant to the judgment of a State court.’” Magwood v. Patterson, 561 U.S.\\n320, 332 (2010) (quoting § 2254(b)(1) (emphasis shifted)); see also Gonzalez v. Crosby,\\n545 U.S. 524, 528 (2005) (“A state prisoner may not file [a second or successive habeas]\\npetition without precertification by the court of appeals that the petition meets stringent criteria.”\\n(citing § 2244(b) (emphasis added)). As the Government concedes, Appellee’s Br. at 23–27, and\\nas Williams points out, Appellant’s Br. at 18–25, this statutory language makes clear that it does\\nnot apply to federal prisoners like Williams who are seeking relief under § 2255—a reading that\\nis underscored by the fact that Congress clearly knew how to refer to federal prisoners (or all\\napplicants) when it wanted to do so. See 28 U.S.C. § 2244(a); id. § 2244(b)(3)(A); see also\\nHenson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[U]sually at least,\\nwhen we’re engaged in the business of interpreting statutes we presume differences in language\\nlike this convey differences in meaning.”). The Government and Williams are not alone in their\\n\\n\\n 2In a sense, § 2244(b)(4) (“A district court shall dismiss any claim presented in a second or successive\\napplication that the court of appeals has authorized to be filed unless . . . the claim satisfies the requirements of this\\nsection.”) also raises possible jurisdictional concerns. We discuss below why it does not in fact have jurisdictional\\neffect here.\\n 3We need not address whether the language of § 2244(b)(1) is itself jurisdictional.\\n 4We offer no opinion either on whether the procedural beginning of § 2255(h) (“[A] second or successive\\nmotion must be certified as provided in section 2244 by a panel of the appropriate court of appeals . . . .”) is\\njurisdictional. Because Williams has secured such authorization, see R. 43 (2016 CA6 Order at 6) (Page ID #247),\\nhe has satisfied that requirement, and thus any opinion on this question would be dicta.\\n\\n No. 17-3211 Williams v. United States Page 9\\n\\n\\njoint reading: other circuit courts have at least gestured in this direction too. See Moore v.\\nUnited States, 871 F.3d 72, 78 (1st Cir. 2017); United States v. Winestock, 340 F.3d 200, 204–\\n05, 208 (4th Cir. 2003); Stanko v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010).\\n\\n The main argument against this reading of § 2244(b)(1)’s plain text is that § 2255(h)\\nrefers to § 2244 when it states that “[a] second or successive motion must be certified as\\nprovided in section 2244 by a panel of the appropriate court of appeals to contain” one of the two\\nthreshold conditions. 28 U.S.C. § 2255(h); see Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.\\n2002) (“Although § 2244 refers to § 2254 rather than § 2255, we have held that the cross-\\nreference to § 2244 in § 2255[(h)] means that it is equally applicable to § 2255 motions.” (citing\\nBennett v. United States, 119 F.3d 468 (7th Cir. 1997))). But as Williams observes, Appellant’s\\nBr. at 24 n.7, § 2255(h)’s reference to § 2244’s certification requirement is much more sensibly\\nread as referring to the portions of § 2244 that actually concern the certification procedures, see\\n28 U.S.C. § 2244(b)(3)—the provisions, in other words, that “provide[]” for how such a “motion\\n[is to] be certified,” see id. § 2255(h). By contrast, it makes no linguistic sense to direct a court\\nto “certif[y] as provided in section 2244[(b)(1)]” that a motion contains the threshold conditions\\ndiscussed in § 2255(h); what makes linguistic sense is to direct a court to certify that those\\npreconditions are met in accordance with the procedures laid out in § 2244(b)(3).5 There is,\\naccordingly, “no reason to doubt that in” including the restrictive clause referring exclusively to\\nstate prisoners in § 2244(b)(1), “Congress said what it meant and meant what it said.” Loughrin\\nv. United States, 134 S. Ct. 2384, 2391 (2014).\\n\\n It bears noting that two published cases from our court have suggested (though without\\nany explanation) that § 2244(b)(1) does apply in § 2255 cases. See Charles v. Chandler,\\n180 F.3d 753, 758 (6th Cir. 1999) (per curiam); In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013)\\n(citing Charles). These statements do not, however, bind us. That is because, while we may not\\n\\n 5Perhaps understandably, then, the Seventh Circuit case from which that circuit adopted the wholesale\\nimportation of § 2244(b) into § 2255 was one that focused on the procedural requirements expressed in\\n§ 2244(b)(3). See Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997) (“We take the phrase ‘as provided in\\nsection 2244,’ which appears in section 2255, to mean that in considering an application under section 2255 for\\npermission to file a second or successive motion we should use the section 2244 standard, and thus insist only on a\\nprima facie showing of the motion’s adequacy [under § 2244(b)(3)(C)].”). It is not clear that the Seventh Circuit\\never interrogated its later interpretation of that logic as extending to cover § 2244(b)(1) despite that subsection’s\\nglaring textual red flag. See, e.g., Taylor, 314 F.3d at 836.\\n\\n No. 17-3211 Williams v. United States Page 10\\n\\n\\noverrule the holding of a prior published case, see Salmi v. Sec’y of Health & Human Servs.,\\n774 F.2d 685, 689 (6th Cir. 1985), “dictum in a prior decision—as opposed to a holding—does\\nnot bind future panels,” In re Campbell, 874 F.3d 454, 464 (6th Cir.), cert. denied, 138 S. Ct. 466\\n(2017). And neither of those two cases held that § 2244(b)(1) was applicable because neither\\ncited the provision for a proposition that was “necessary to the outcome.” See id. (observing\\n“that statements which are ‘not necessary to the outcome’ are [not holdings and thus] not binding\\non later panels” (quoting United States v. Turner, 602 F.3d 778, 785–86 (6th Cir. 2010)));\\nCharles, 180 F.3d at 758 (stating that the federal petitioner was “not entitled to file a successive\\n§ 2255 motion to vacate because he seeks permission to file the same claims that have already\\nbeen denied on the merits,” but then ruling that petitioner had not, “[i]n any event, . . . made a\\nprima facie showing of satisfying either one of the two criteria listed in § 2255”); Liddell,\\n722 F.3d at 738 (stating that a successive claim would be “barred” but that the federal movant\\nhad in any event failed to satisfy § 2255(h)).\\n\\n Meanwhile, although at least one other circuit has found § 2244(b)(1) to be applicable to\\n§ 2255 movants on policy grounds, see In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016)\\n(“Although § 2244(b)(1) explicitly applies to petitions filed under § 2254, which applies to state\\nprisoners, it would be odd indeed if Congress had intended to allow federal prisoners to refile\\nprecisely the same non-meritorious motions over and over again while denying that right to state\\nprisoners.”), the Government is correct, see Appellee’s Br. at 27, that such a reading is an\\nunjustifiable contravention of plain statutory text. See, e.g., Mohamad v. Palestinian Auth.,\\n566 U.S. 449, 460 (2012) (“[N]o legislation pursues its purposes at all costs, and petitioners’\\npurposive argument simply cannot overcome the force of the plain text.” (citation and internal\\nquotation marks omitted)).6 We therefore hold that § 2244(b)(1) does not apply to federal\\nprisoners like Williams seeking relief under § 2255.\\n\\n\\n 6Even allowing that a truly “absurd” result could justify such a textual departure, see, e.g., Hartford\\nUnderwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000), the result here is not so outlandish. AEDPA,\\nafter all, was enacted “to further the principles of comity, finality, and federalism,” Williams v. Taylor, 529 U.S. at\\n436, and two of those three considerations fall aside when it comes to federal prisoners, whose cases implicate no\\nseparate sovereign. Because it is not absurd to understand Congress as having intended to provide a marginally less\\nrestrictive regime for federal prisoners (whose § 2255 motions threaten no comity or federalism interests), we accept\\nthat “Congress said what it meant and meant what it said” when it drafted § 2244(b)(1). Loughrin, 134 S. Ct. at\\n2391.\\n\\n No. 17-3211 Williams v. United States Page 11\\n\\n\\n 2. Section 2255(h)\\n\\n Section 2255(h), by contrast, clearly does apply to a federal prisoner like Williams. The\\nquestion, then, is whether its substantive requirements pose any jurisdictional bar. “A rule is\\njurisdictional ‘[i]f the Legislature clearly states that a threshold limitation on a statute’s scope\\nshall count as jurisdictional.’” Gonzalez v. Thaler, 565 U.S. 134, 141–42 (2012) (alteration in\\noriginal) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)). Understandably, then,\\ncourts generally look first to whether “[t]he terms of the provision” clearly indicate “that the\\nprovision was meant to carry jurisdictional consequences,” but they may also look to factors like\\na provision’s “placement within the” statute and “the singular characteristics of the review\\nscheme that Congress created,” which reflect the statute’s purpose. See Henderson, 562 U.S. at\\n438–40; accord Gonzalez v. Thaler, 565 U.S. at 143–44 (looking to statutory text, operation, and\\npurpose).\\n\\n Williams rightly identifies that the closest analogy for this question is to Gonzalez v.\\nThaler, in which the Supreme Court analyzed the highly comparable interplay between 28\\nU.S.C. § 2253’s certificate-of-appealability (COA) provisions. See 565 U.S. at 137; 28 U.S.C.\\n§ 2253(c). There, the Court explained, “the only ‘clear’ jurisdictional language in § 2253(c)\\nappears in § 2253(c)(1),” which provides that “an appeal may not be taken” in the absence of a\\nCOA. Gonzalez v. Thaler, 565 U.S. at 142 (quoting 28 U.S.C. § 2253(c)(1)). “The parties” had\\n“agreed . . . for good reason,” meanwhile, that § 2253(c)(2), which “speaks only to when a COA\\nmay issue—upon ‘a substantial showing of the denial of a constitutional right,’” was non-\\njurisdictional. Id. at 143 (quoting 28 U.S.C. § 2253(c)(2)). In addition to noting that\\n§ 2253(c)(2) lacked “§ 2253(c)(1)’s jurisdictional terms,” the Court explained, “it would be\\npassing strange if, after a COA has issued, each court of appeals adjudicating an appeal were\\ndutybound to revisit the threshold showing and gauge its ‘substantial[ity]’ to verify its\\njurisdiction.” Id. (alteration in original). “That inquiry would be largely duplicative of the\\nmerits question before the court.” Id.\\n\\n No. 17-3211 Williams v. United States Page 12\\n\\n\\n The Court then concluded that § 2253(c)(3) was similarly non-jurisdictional, because\\n“[l]ike § 2253(c)(2), it too reflects a threshold condition for the issuance of a COA,” and “does\\nnot speak in jurisdictional terms.” Id. (citation omitted). The contrast between provisions like\\n§ 2253(c)(1) and the other two subsections “underscore[d]” that “[a] defective COA is not\\nequivalent to the lack of any COA.” Id. Moreover, the Court explained, it was “telling . . . that\\nCongress placed the power to issue COAs in the hands of a ‘circuit justice or judge’” and that the\\ncorresponding requirement “binds only the judge issuing the COA”—which “would only\\ncompound the ‘unfai[r] prejudice resulting from the sua sponte dismissals and remands that\\njurisdictional treatment would entail.” Id. at 143–44 (alteration in original) (quoting Henderson,\\n562 U.S. at 434). And it would, for that matter, “thwart Congress’s intent in AEDPA ‘to\\neliminate delays in the federal habeas review process’” to require stage-by-stage vigilance\\nregarding satisfaction of the COA threshold conditions, given that “[e]ven if additional screening\\nof already-issued COAs for § 2253(c)(3) defects could further winnow the cases before the\\ncourts of appeals, that would not outweigh the costs of further delay from the extra layer of\\nreview.” Id. at 144–45.\\n\\n As Williams notes, obtaining authorization to file a second or successive § 2255 motion\\nmaps onto this analysis tightly:\\n\\n Just as the requirement of first obtaining a COA is jurisdictional, so too is the\\n requirement that a movant obtain authorization from the court of appeals before\\n filing a second or successive § 2255 motion in the district court. Furthermore,\\n just as §§ 2253(c)(2) and (3) are not jurisdictional because they merely describe\\n when a COA may issue and what the COA should contain, §§ 2255(h)(1) and (2)\\n are not jurisdictional either.\\n\\nAppellant’s Br. at 34; see 28 U.S.C. § 2255(h)(1)–(2). Similarly, the only obligation that\\n§ 2255(h) places on the movant is seeking authorization; assessing the § 2255(h) threshold\\nconditions themselves is wholly committed to the issuing “panel of the appropriate court of\\nappeals.” See id. (“A second or successive motion must be certified as provided in section 2244\\nby a panel of the appropriate court of appeals to contain . . . .”). It would thus run afoul of the\\ntext’s focus on the issuing panel, impose substantial added delay contrary to Congress’s purpose,\\nand risk unfair prejudice to movants who had fully complied with their own obligations to\\nrequire each later panel to recommence review of the § 2255(h) threshold conditions.\\n\\n No. 17-3211 Williams v. United States Page 13\\n\\n\\nWe therefore hold, consistent with Gonzalez v. Thaler, that “[a] defective [authorization] is not\\n[jurisdictionally] equivalent to the lack of any [authorization].” See 565 U.S. at 143. Thus (as\\nthe Government concedes, Appellee’s Br. at 38), because any shortcomings in Williams’s\\nsatisfaction of the § 2255(h) threshold conditions were not jurisdictional, invocation of any such\\ndefect was susceptible to forfeiture. See, e.g., Hamer, 138 S. Ct. at 17.\\n\\n 3. Section 2244(b)(4)\\n\\n The one possible counterpoint to this analysis is § 2244(b)(4). That subsection, as noted\\nabove, provides that “[a] district court shall dismiss any claim presented in a second or\\nsuccessive application that the court of appeals has authorized to be filed unless the applicant\\nshows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4).\\nAlthough the Government does not read it this way, Doc. 48 (Appellee’s Letter of June 14, 2018,\\nat 2), the provision could arguably be read as requiring post-authorization vigilance in a way that\\nwould connote jurisdictionality.\\n\\n There are at least two reasons that § 2244(b)(4) does not impose its own jurisdictional bar\\nin this case. First, as the Government correctly observes, see id., the provision does not “clearly\\nstate[]” a jurisdictional bar, Gonzalez v. Thaler, 565 U.S. at 141 (citation omitted), particularly\\ngiven its focus on a single decisionmaker’s review, at a particular stage, of “a threshold\\ncondition,” see id. at 143. “And the fact that dismissal is ‘mandatory’ likewise does not change\\nthe nonjurisdictional character of this provision.” Doc. 48 (Appellee’s Letter of June 14, 2018,\\nat 2) (quoting Henderson, 562 U.S. at 439); see also Thaler, 565 U.S. at 146 (“This Court,\\nmoreover, has long ‘rejected the notion that “all mandatory prescriptions, however emphatic are\\n. . . properly typed jurisdictional.”’” (quoting Henderson, 562 U.S. at 439)). Rather, “[i]f\\nproperly invoked, mandatory claim-processing rules must be enforced, but they may be waived\\nor forfeited.” Hamer, 138 S. Ct. at 17. Thus, any failure by or before the district court would at\\nleast be waivable and forfeitable; it would not divest us of jurisdiction on appeal.\\n\\n Second, even if we understand that provision as outlasting the district court’s\\ninvolvement in the case and being (when properly raised) “reviewable on appeal in the ordinary\\ncourse” see, e.g., Holt v. United States, 843 F.3d 720, 723 (7th Cir. 2016), any jurisdictional\\n\\n No. 17-3211 Williams v. United States Page 14\\n\\n\\nconcerns are subsumed by the provisions we have already discussed. That is because the\\n“requirements of this section” that could conceivably be at issue, see 28 U.S.C. § 2244(b)(4), are\\neither those expressed in § 2244 itself—which are either procedurally satisfied or inapplicable—\\nor, via § 2244(a) (“No circuit or district judge shall be required to entertain an application . . .\\nexcept as provided in section 2255.”), the requirements in § 2255, which are either procedurally\\nsatisfied or nonjurisdictional. Thus, because those provisions do not otherwise raise a\\njurisdictional problem in this case, neither does § 2244(b)(4). We therefore hold that\\n§ 2244(b)(4) does not impose a jurisdictional bar on a federal prisoner like Williams seeking\\nrelief under § 2255 either.\\n\\nC. Whether Williams Is Entitled to Raise a Second or Successive Motion\\n\\n Just because a provision is not jurisdictional, of course, does not mean that it is\\ncompletely discretionary. Instead, as the Government notes, the AEDPA provisions that apply to\\nWilliams are “better understood as . . . mandatory claim-processing rule[s].” See Appellee’s Br\\nat 27 n.6. Such rules may, by their nature, “be waived or forfeited,” Hamer, 138 S. Ct. at 17,\\nand, as the Government acknowledges, it “did not raise these procedural impediments below or\\nbefore the panel,” Appellee’s Br. at 38; see also R. 41 (Gov’t’s Response to § 2255 Mot.) (Page\\nID #230–39); R. 45 (Gov’t’s Supp. Response) (Page ID #354–60); Appellee’s Panel Br. at 1–2,\\n8–12. Thus, as the Government points out, Appellee’s Br. at 38, we may properly treat these\\narguments as forfeited, and we do so here. Cf. Elzy v. United States, 205 F.3d 882, 886 (6th Cir.\\n2000).\\n\\n We can now turn to whether Williams has in fact satisfied one of § 2255(h)’s two\\nalternative requirements. As we have explained in a comparable case, because this is a second or\\nsuccessive motion under § 2255, Williams “needs new law.” Potter, 887 F.3d at 787. “In one\\nsense, he has it. Johnson [II] announced a new rule of constitutional law when it invalidated the\\nresidual clause, and Welch v. United States, 136 S. Ct. 1257 (2016), made the rule retroactive to\\ncases on collateral review.” Potter, 887 F.3d at 787. Williams therefore, under binding\\nprecedent, must show that it is more likely than not “that the district court relied only on the\\n\\n No. 17-3211 Williams v. United States Page 15\\n\\n\\nresidual clause in sentencing” him.7 See id.; see also Dimott v. United States, 881 F.3d 232, 243\\n(1st Cir. 2018) (“[T]o successfully advance a Johnson II claim on collateral review, a habeas\\npetitioner bears the burden of establishing that it is more likely than not that he was sentenced\\nsolely pursuant to ACCA’s residual clause.”); Beeman v. United States, 871 F.3d 1215, 1221–22\\n(11th Cir. 2017) (“To prove a Johnson claim, the movant must show that—more likely than\\nnot—it was use of the residual clause that led to the sentencing court’s enhancement of his\\nsentence.”); but see United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017) (concluding that\\nthe movant may proceed with his claim under Johnson II if the sentencing court “may have”\\nrelied on the residual clause); United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017)\\n(“[W]hen an inmate’s sentence may have been predicated on application of the now-void\\nresidual clause and, therefore, may be an unlawful sentence under the holding in Johnson II, the\\ninmate has shown that he ‘relies on’ a new rule of constitutional law.”).8 It is not enough for him\\n\\n 7In Raines v. United States, we interpreted Potter to “stand[] for the proposition that a 28 U.S.C. § 2255\\nmovant seeking relief under Johnson must show ‘evidence that the district court relied only on the residual clause\\nin’ making the ACCA determination under attack if (1) the movant is bringing a second or successive motion and\\n(2) there is evidence that the movant was sentenced under a clause other than the residual clause, such as the\\nsentencing judge’s averment that the movant was indeed sentenced under another clause.” 898 F.3d 680, 686 (6th\\nCir. 2018). We read Raines’s second condition to limit Potter to cases in which there is affirmative evidence that\\nthe sentencing court sentenced the movant under a clause other than the residual clause, the situation confronted in\\nPotter itself. See Potter, 887 F.3d at 788 (“[T]he judge who reviewed his § 2255 motion is the same judge who\\nsentenced him. It is difficult to think of a better source of information about what happened the first time. Judge\\nReeves saw no value to a second sentencing because he sentenced Potter under the enumerated-crimes clause.”).\\nWilliams’s case presents no such affirmative evidence. Here, however, because we conclude that Williams satisfies\\nPotter’s presumably tougher standard, we need not decide what lesser showing a movant might be required to make\\nwhere there is no affirmative evidence that he was sentenced under a different clause than the residual clause.\\n 8To the extent that Potter’s phrase “relied only on” may appear to differ from the First and Eleventh\\nCircuits’ formulations, see 887 F.3d at 797, the Government argues that “[t]he ‘relied only on’ clarification\\nemphasizes the need for the evidence [of reliance on the residual clause] to preponderate” over any evidence of\\nreliance on a different clause. Appellee’s Br. at 46. We believe that the Government is correct, in the sense that\\nPotter’s test can be satisfied only when there is reason to believe that the residual clause was doing more than fifty\\npercent of the sentencing’s judge’s analytical work—that is, only when the residual clause was the decisive clause in\\nthe sentencing judge’s rationale.\\n To appreciate the meaning of this distinction, imagine two prisoners, each raising Johnson II claims. The\\nfirst was sentenced by a judge who explicitly stated on the record: “I conclude that both the elements clause and the\\nresidual clause fully justify your sentence.” The second was sentenced by a judge who explicitly stated on the\\nrecord: “I conclude that the residual clause fully justifies your sentence, but it is possible that the elements clause\\nmight too.” We understand the import of Potter’s “relie[s] only on” clause to be that the first prisoner could not\\nraise a second or successive Johnson II claim, whereas the second could, because ultimately the reliance in that case\\nwould have been on the residual clause. This approach bears a passing resemblance to how we treat the analytically\\nthorny habeas question of whether a state court based a judgment on federal law or on an “independent and adequate\\nstate ground,” see Coleman v. Thompson, 501 U.S. 722, 732–35 (1991) (explaining that we may not consider the\\nclaim when a state court states “clearly and expressly” that state law is doing just as much or more work than federal\\n\\n No. 17-3211 Williams v. United States Page 16\\n\\n\\nto show simply that “the sentencing court may have relied on the residual clause.” Potter, 887\\nF.3d at 788.\\n\\n The parties point to two sources of evidence for assessing whether a movant was\\nsentenced for a relevant predicate conviction under the ACCA’s residual clause: “1) the original\\nsentencing proceedings; and 2) the relevant legal background at the time of the sentencing.”\\nAppellant’s Br. at 40; accord Appellee’s Br. at 49 (“Once again, Potter is instructive. It\\nrecognized that there are two primary sources of material that may be consulted: (i) the\\nsentencing record, and (ii) case law that existed at the time of sentencing.”). This list is\\nunderinclusive, even just drawing from Potter. In fact, while we agree that those two sources of\\nevidence are well-established and helpful, Potter and cases from our sister circuits reveal at least\\nfive places that courts choose to look:\\n\\n (1) The sentencing record\\n (2) The legal background\\n (3) Informed decisionmakers\\n (4) Nature of the predicate offense\\n (5) Later legal developments (at least if highly predictable)\\n\\nSee Potter, 887 F.3d at 788; Dimott, 881 F.3d at 240–41; United States v. Taylor, 873 F.3d 476,\\n480–82 (5th Cir. 2017); Beeman, 871 F.3d at 1224 & nn.4–5; United States v. Snyder, 871 F.3d\\n1122, 1128–29 (10th Cir. 2017). We consider each in turn.\\n\\n\\n\\nlaw in its analysis, id. at 733–34 (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)), whereas we presume the\\nopposite “when the [state-court] decision ‘fairly appears to rest primarily on federal law, or to be interwoven with\\nthe federal law, and when the adequacy and independence of any possible state law ground is not clear from the face\\nof the opinion,’” id. at 735 (quoting Michigan v. Long, 463 U.S. 1032, 1040–41 (1983))). Thus, in somewhat the\\nsame way that a habeas petitioner cannot obtain review when he can prove no more than that federal law\\nsupplemented the independently sufficient state-law rationale that the state court gave, a movant under Potter cannot\\nshow “that the district court relied only on the residual clause in sentencing” him when he can prove no more than\\nthat the residual clause supplemented an independently sufficient reliance on one of the other two clauses. See\\nPotter, 887 F.3d at 787.\\n Of course, determining on which clause or clauses the sentencing judge relied will often hinge on the legal\\nfiction of attempting to reconstruct what the sentencing judge must have thought based on other, objective evidence.\\nSee, e.g., Potter, 887 F.3d at 788; Dimott, 881 F.3d at 240–41; United States v. Taylor, 873 F.3d 476, 480–82 (5th\\nCir. 2017); Beeman, 871 F.3d at 1224 & nn.4–5; United States v. Snyder, 871 F.3d 1122, 1128–29 (10th Cir. 2017).\\nWe discuss below, in light of Potter and persuasive authority from other circuits, how to make that objective\\nassessment in this case.\\n\\n No. 17-3211 Williams v. United States Page 17\\n\\n\\n 1. Sentencing Record\\n\\n Virtually all courts, including ours, look to a prisoner’s sentencing record. See Potter,\\n887 F.3d at 788; see also Dimott, 881 F.3d at 240; Beeman, 871 F.3d at 1224 & n.4; Snyder, 871\\nF.3d at 1128. But this source is both the simplest and least helpful in cases like this one because,\\nas all agree, the record itself offers no guidance. See Appellant’s Br. at 41; Appellee’s Br. at 5,\\n53. Williams cannot rely on the sentencing record to meet a heightened burden for invoking\\nJohnson II.\\n\\n 2. Legal Background\\n\\n Most courts also look, as we do, to the operative legal background. See Potter, 887 F.3d\\nat 788; see also Taylor, 873 F.3d at 482; Beeman, 871 F.3d at 1224 & n.5; Snyder, 871 F.3d at\\n1129. In Snyder, for example, as the parties observe, the Tenth Circuit looked to “a ‘snapshot’ of\\nwhat the controlling law was at the time of sentencing.” 871 F.3d at 1129. Reasoning that the\\nSupreme Court’s rationale in Taylor v. United States, 495 U.S. 575, 599, 602 (1990), “would\\nhave [left] little dispute at the time of Snyder’s sentencing that his two Wyoming burglary\\nconvictions involving occupied structures fell within the scope of the ACCA’s enumerated\\ncrimes clause,” the court rejected Snyder’s claim under Johnson II. Snyder, 871 F.3d at 1229.\\nPotter, similarly, pointed to cases from “the time” that had identified Georgia burglary as a\\nqualifying ACCA predicate under the enumerated-crimes clause in rejecting Potter’s petition.\\n887 F.3d at 788.\\n\\n By contrast, in Taylor, the Fifth Circuit, while not adopting a particular standard burden\\nfor Johnson II petitioners, concluded that the petitioner there, Taylor, could rely on Johnson II\\nbecause “there was precedent suggesting that Taylor’s third predicate conviction could have\\napplied only under the residual clause.” 873 F.3d at 482 (citing United States v. Gracia-Cantu,\\n302 F.3d 308, 311–13 (5th Cir. 2002)). “Theoretically,” the court explained, “the district court\\nmistakenly could have been thinking of the elements clause when sentencing Taylor.” Id. But it\\nnevertheless refused to “hold a defendant responsible for what may or may not have crossed a\\njudge’s mind during sentencing.” Id.\\n\\n No. 17-3211 Williams v. United States Page 18\\n\\n\\n Williams’s case is more like Taylor than it is like Snyder or Potter. Here, as Williams\\npoints out, Appellant’s Br. at 43, there was only one case at the time of Williams’s sentencing\\nthat could have informed his sentencing: United States v. Calloway, 189 F. App’x 486 (6th Cir.\\n2006). Although that case involved Ohio aggravated assault under Ohio Rev. Code § 2903.12\\nrather than § 2903.11 and the Guidelines rather than the ACCA, those are distinctions without\\ndifferences: Ohio aggravated assault is functionally “identical” to Ohio felonious assault,\\nAnderson, 695 F.3d at 402, and the relevant Guidelines provision was also functionally identical,\\nsee U.S.S.G. § 4B1.2(a) (2006); United States v. Patterson, 853 F.3d 298, 305 (6th Cir.), cert.\\ndenied, 138 S. Ct. 273 (2017). The language from our decision, meanwhile, is telling:\\n\\n Calloway argues that aggravated assault is not a predicate crime of violence as a\\n defendant may cause physical harm without the use, attempted use or threatened\\n use of physical force as required by U.S.S.G. Section 4B1.2(a)(1).\\n Calloway’s argument that the aggravated assault is not a crime of violence\\n is without merit. There is no question that causing or attempting to cause physical\\n harm presents a serious risk of physical injury to another under Section\\n 4B1.2(a)(2) of the Sentencing Guidelines.\\n\\nId. at 491. In other words, Calloway had argued that his crime did not qualify under the\\nelements clause, and we rejected his argument because his crime did qualify under the residual\\nclause. See id. By expressly endorsing that one qualifying clause, we at the very least suggested\\nstrongly that the residual clause was a better justification than the elements clause. Cf. NLRB v.\\nSW Gen., Inc., 137 S. Ct. 929, 940 (2017) (discussing the expressio unius canon). Therefore,\\nboth in light of the methods that other courts have adopted and the “presumption in the law that a\\ndistrict court knows and applies the law correctly,” Appellee’s Br. at 51 (quoting United States v.\\nGale, 468 F.3d 929, 941 (6th Cir. 2006)), we presume that when Judge Dowd sentenced\\nWilliams, Calloway pointed him to the residual clause.\\n\\n Notably, the Government failed to offer a response to Calloway either in its briefing or at\\noral argument. Although that was enough to forfeit this issue, see, e.g., U.S. ex rel. Marlar v.\\nBWXT Y-12, LLC, 525 F.3d 439, 450 n.6 (6th Cir. 2008), the Government did belatedly address\\nthe issue in a letter it sent to the en banc court following oral argument, see Doc. 48 (Appellee’s\\nLetter of June 14, 2018, at 1). Even if we were not to deem the Government’s response on this\\nscore forfeited, its arguments are unavailing. First, the Government argues that “the residual-\\n\\n No. 17-3211 Williams v. United States Page 19\\n\\n\\nclause discussion [in Calloway] was not necessary to the decision because the offense was\\nenumerated in the commentary.” Id. But that does not change the guidance that Calloway would\\nhave offered Judge Dowd in sentencing Williams under the ACCA, because the offense was not\\nenumerated for ACCA purposes. See 18 U.S.C. § 924(e). Second, the Government argues,\\n“even if [Calloway] could be read to hold that the residual clause provides a basis for classifying\\nthis offense as a crime of violence, it does not hold that the residual clause is the only basis for\\nthat conclusion.” Doc. 48 (Appellee’s Letter of June 14, 2018, at 1). But that too is beside the\\npoint because Williams’s challenge here is to prove that the residual clause was more likely than\\nnot the decisive clause on which Judge Dowd relied—not that it is impossible to imagine an\\nalternate universe in which he relied on the elements clause instead. Thus, if Calloway was the\\nonly case around offering any guidance—and we find that it was—that suggests that it is more\\nlikely than not that Judge Dowd relied on the residual clause rather than the elements clause.\\n\\n It is also true, moreover, that the categorical shortcomings of Ohio Rev. Code § 2903.11\\nshould have been just as identifiable in 2006 as they are today. Much as the Tenth Circuit\\npointed out in Snyder, 871 F.3d at 1229, the dictates of the categorical approach had been clear\\nsince the Supreme Court’s 1990 Taylor decision, see 495 U.S. at 588–90. And as the Supreme\\nCourt emphasized in its Johnson I ruling, the meaning of “force” in the context of the ACCA has\\nalso long been recognized:\\n\\n We think it clear that in the context of a statutory definition of “violent felony,”\\n the phrase “physical force” means violent force—that is, force capable of causing\\n physical pain or injury to another person. See Flores v. Ashcroft, 350 F.3d 666,\\n 672 (7th Cir. 2003) (Easterbrook, J.). Even by itself, the word “violent” in\\n § 924(e)(2)(B) connotes a substantial degree of force. Webster’s Second 2846\\n (defining “violent” as “[m]oving, acting, or characterized, by physical force, esp.\\n by extreme and sudden or by unjust or improper force; furious; severe;\\n vehement . . .”); 19 Oxford English Dictionary 656 (2d ed. 1989)\\n (“[c]haracterized by the exertion of great physical force or strength”); Black’s\\n 1706 (“[o]f, relating to, or characterized by strong physical force”). When the\\n adjective “violent” is attached to the noun “felony,” its connotation of strong\\n physical force is even clearer. See id. at 1188 (defining “violent felony” as “[a]\\n crime characterized by extreme physical force, such as murder, forcible rape, and\\n assault and battery with a dangerous weapon”); see also United States v. Doe, 960\\n F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (“[T]he term to be defined, ‘violent\\n felony,’ . . . calls to mind a tradition of crimes that involve the possibility of more\\n closely related, active violence”).\\n\\n No. 17-3211 Williams v. United States Page 20\\n\\n\\nJohnson I, 559 U.S. at 140–41 (non-Bluebook alterations in original). Because Williams’s\\n“sentencing proceeding occurred against the backdrop of the Supreme Court’s decision in\\nTaylor” and the longstanding legal and linguistic concepts discussed in Johnson I, see Snyder,\\n871 F.3d at 1129, and given that we presume “that a district court knows and applies the law\\ncorrectly,” Appellee’s Br. at 51 (quoting Gale, 468 F.3d at 941), it is even more likely that Judge\\nDowd would have steered clear of the categorical red flags in Ohio Rev. Code § 2903.11’s\\nelements. See, e.g., Burris, 912 F.3d at 397–98; Perry, 703 F.3d at 910; Anderson, 695 F.3d at\\n403–06 (6th Cir. 2012) (White, J., concurring). In sum, it seems clear that Judge Dowd more\\nlikely than not relied decisively on the residual clause in determining that Williams’s conviction\\nunder Ohio Rev. Code § 2903.11 qualified as an ACCA predicate.\\n\\n 3. Informed Decisionmakers\\n\\n A third source of evidence that we and other courts have looked to is whether the district\\njudge who sentenced a petitioner is the same district judge who evaluated that petitioner’s § 2255\\nmotion. See Potter, 887 F.3d at 788 (“On top of that, the judge who reviewed his § 2255 motion\\nis the same judge who sentenced him. It is difficult to think of a better source of information\\nabout what happened the first time around.”); see also Dimott, 881 F.3d at 237 (“On collateral\\nreview, the district court judge in both cases (who had also served as the sentencing judge) found\\nthat Dimott and Collamore had earlier been sentenced pursuant to the ACCA’s enumerated\\nclause. . . . Although these findings were made during the collateral review process, and not\\nexpressly stated at the time of sentencing, we give them due weight because the habeas judge\\nwas describing his own decisions at sentencing.”); cf. Snyder, 871 F.3d at 1128 (“In other words,\\nthe district court found, as a matter of historical fact, that it did not apply the ACCA’s residual\\nclause in sentencing Snyder under the ACCA.”).\\n\\n This source of evidence is not available here: while Williams was sentenced by Judge\\nDowd, see, e.g., R. 18 (Sentencing Mem. Op. at 1) (Page ID #34), his § 2255 motion was\\nconsidered below by Judge Oliver, R. 49 (Dist. Ct. Order at 1) (Page ID #397), and Judge Dowd\\nhas since passed away. While this source casts no affirmative light on the question at hand, it\\ndistinguishes Williams’s petition from Potter and Dimott, in which the reviewing courts cited\\nthat source of evidence to buttress their rationales for denying relief.\\n\\n No. 17-3211 Williams v. United States Page 21\\n\\n\\n 4. Nature of the Predicate Offense\\n\\n Some courts also look to the nature of the predicate offense to help piece together a\\ndistrict court’s sentencing decision. For example, in Potter, we pointed to the fact that the crime\\nat issue was Georgia burglary as additional evidence that the petitioner was unlikely to have been\\nsentenced under the residual clause. See 887 F.3d at 788–89 (listing “the specification of\\n‘burglary’ in the enumerated-crimes clause of the Act,” id. at 788, as one of the four factors on\\nwhich this court was basing its conclusion). Likewise, in Holt v. United States, 843 F.3d 720\\n(7th Cir. 2016), a case cited by Potter, the Seventh Circuit considered a Johnson II movant who\\nsought to contest the applicability of his prior conviction for Illinois burglary. Id. at 721. In\\nrejecting Holt’s petition, however, the court specifically distinguished Holt from a petitioner like\\nWilliams. After reciting the clauses of the ACCA, the court explained:\\n\\n [T]he residual clause . . . contains the only language that Johnson held\\n unconstitutionally vague. The possibility that after Johnson defendants may have\\n a stronger incentive to contest the classification of convictions under the elements\\n clause—in the hope of moving them to the residual clause and thus eliminating\\n them from the set of violent felonies—has nothing to do with Holt’s situation.\\n His burglary conviction was classified as a violent felony under the burglary\\n clause. Nothing in Johnson, Welch, or Stanley [an earlier Seventh Circuit case]\\n affects the proper treatment of burglary convictions. So Holt’s second collateral\\n attack cannot rest on Johnson.\\n\\nId. at 723.\\n\\n This language suggests that courts might reasonably treat a conviction for an ostensibly\\nenumerated crime as allowing somewhat greater certainty about a sentencing judge’s\\ndecisionmaking than would a crime at the fault line between the elements clause and the residual\\nclause. See id. Regardless, Williams was not convicted of an ostensibly enumerated crime, and\\nin any event he meets his burden based on the legal background alone. Nevertheless, we note\\nthat this factor also distinguishes Williams’s case from Potter, 887 F.3d at 787 (Georgia\\nburglary), as well as from Dimott, Snyder, and Holt, which all involved state burglary charges,\\nsee Dimott, 881 F.3d at 234 (Maine burglary); Snyder, 871 F.3d at 1125 (Wyoming burglary);\\nHolt, 843 F.3d at 720 (Illinois burglary).\\n\\n No. 17-3211 Williams v. United States Page 22\\n\\n\\n 5. Later Legal Developments\\n\\n Finally, while some of the courts that look to “a ‘snapshot’ of what the controlling law\\nwas at the time of sentencing” purposefully exclude from that analysis “post-sentencing\\ndecisions that may have clarified or corrected pre-sentencing decisions,” Snyder, 871 F.3d at\\n1129, others have also consulted after-the-fact case law. In Dimott, for example, the First Circuit\\nexpressly relied on one of its own recent opinions on the ground that the recent opinion’s\\n“holding [was] a ‘straightforward’ application of the 1990 Supreme Court decision in Taylor v.\\nUnited States, 495 U.S. 575 (1990).” Dimott, 881 F.3d at 241 (quoting United States v.\\nDuquette, 778 F.3d 314, 317 (1st Cir. 2015)). Likewise, though less pivotally, we in Potter\\nobserved that “[c]ases decided after [Potter’s] sentencing” confirmed that Georgia burglary\\nqualified under the enumerated-crimes clause, though it offered this observation only after noting\\nthat cases that preceded Potter’s sentencing had said so, too. 887 F.3d at 788. Here, however,\\nwhile we ruled in Anderson that Ohio felonious assault qualified under the elements clause in\\n2012, 695 F.3d at 400, 402, we then ruled (the very next year) in Perry, without mentioning\\nAnderson, that the (functionally identical) crime of Ohio aggravated assault qualified only under\\nthe residual clause, see Perry, 703 F.3d at 910. Thus, as the Government concedes, “the after-\\nannounced decisions do not support a presumption one way or the other that the sentencing court\\nrelied on the elements or the residual clause in this case.” Appellee’s Br. at 54.\\n\\n ***\\n\\n In short, surveying the various sources of evidence that we can draw from, the balance\\ntips in Williams’s favor. Williams’s sentencing record and later legal developments provide no\\nguidance one way or the other, and there is no informed decisionmaker on whose recollection we\\ncan draw. But the one case that informs the legal background at the time of Williams’s\\nsentencing points appreciably toward the residual clause, and the nature of the predicate offense\\nat the very least does not vitiate that conclusion. Williams has therefore met his burden in\\nproving that Judge Dowd more likely than not relied on the residual clause in deeming his\\nconviction under Ohio Rev. Code § 2903.11(A) an ACCA predicate. Williams is accordingly\\nentitled under § 2255(h)(2) to raise a second or successive motion.\\n\\n No. 17-3211 Williams v. United States Page 23\\n\\n\\nD. Whether Williams’s ACCA Sentence Can Stand\\n\\n Williams’s conviction under Ohio Rev. Code § 2903.11(A) can no longer qualify as an\\nACCA predicate under the residual clause. Johnson II, 135 S. Ct. at 2557. The only question\\nleft is whether it can nevertheless qualify as an ACCA predicate under the elements clause. See\\n18 U.S.C. § 924(e)(2)(B)(i); see also, e.g., Van Cannon v. United States, 890 F.3d 656, 661 (7th\\nCir. 2018) (“To win § 2255 relief, Van Cannon had to establish a Johnson error and that the error\\nwas harmful. The government confessed the Johnson error . . . . The only remaining dispute\\nconcerned the question of prejudice.”). For the reasons provided by our en banc court in Burris,\\nOhio Rev. Code § 2903.11(A)(1) is a categorical mismatch with the functionally identical\\nelements clauses of both the ACCA and the Guidelines. Burris, 912 F.3d at 399.\\n\\n Williams was convicted of violating Ohio Rev. Code § 2903.11(A), and it is undisputed\\nat this stage that none of the Shepard documents suggests that he was in fact convicted under a\\nparticular prong. See R. 39-3 (Indictment and Journal Entry) (Page ID #227–28); R. 48-1\\n(Sentencing Tr. at 7–8, 11) (Page ID #389–90, 393); Appellant’s Br. at 16. That conviction\\ntherefore cannot validly serve as an ACCA predicate. Because that leaves him with only two\\nqualifying ACCA predicates, his sentence as an armed career criminal no longer comports with\\nfederal law. See 18 U.S.C. § 924(e)(1); PSR at 1, 7–8; R. 1 (Indictment) (Page ID #3–4).\\n\\n III. CONCLUSION\\n\\n Because Williams has shown that it is more likely than not that his sentencing judge\\ndecisively relied on the residual clause in deeming his Ohio felonious assault conviction an\\nACCA predicate, he is entitled to raise a second or successive motion under § 2255 in light of\\nJohnson II. Because neither the residual clause nor the elements clause can now justify deeming\\nthat conviction an ACCA predicate, Williams’s federal prison sentence as an armed career\\ncriminal is no longer justified under federal law. We accordingly VACATE Williams’s sentence\\nand REMAND for resentencing.\\n\\n No. 17-3211 Williams v. United States Page 24\\n\\n\\n _________________\\n\\n CONCURRENCE\\n _________________\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2498,"cells":{"id":{"kind":"number","value":4630131,"string":"4,630,131"},"name":{"kind":"string","value":"Mario Sentelle CAVIN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS; David Leach, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Mario Cavin v. Mich. Dep't of Corr."},"decision_date":{"kind":"string","value":"2019-06-17"},"docket_number":{"kind":"string","value":"18-1346"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Rogers, Sutton, Readler\", \"parties\": \"\", \"opinions\": [{\"author\": \"SUTTON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0129p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n MARIO SENTELLE CAVIN, ┐\\n Plaintiff-Appellant, │\\n │\\n > No. 18-1346\\n v. │\\n │\\n │\\n MICHIGAN DEPARTMENT OF CORRECTIONS; DAVID │\\n LEACH, │\\n Defendants-Appellees. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:15-cv-14449—Bernard A. Friedman, District Judge.\\n\\n Decided and Filed: June 17, 2019\\n\\n Before: ROGERS, SUTTON, and READLER, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Mario Sentelle Cavin, New Haven, Michigan, pro se. John L. Thurber, OFFICE\\nOF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n SUTTON, Circuit Judge. Mario Cavin is an inmate in the custody of the Michigan\\nDepartment of Corrections who practices Wicca. While the Department permits Cavin and other\\nWiccans to congregate on some holidays, it prevents their group worship on others and limits\\ntheir use of ritualistic items when alone. Cavin filed this lawsuit to eliminate these restrictions\\nand to seek damages. At summary judgment, the district court ruled against Cavin on the\\ndamages claim. After a trial, the district court held that the Department’s policy did not\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 2\\n\\n\\nsubstantially burden Cavin’s religious exercise under the Religious Land Use and\\nInstitutionalized Persons Act. Because a policy substantially burdens religious exercise when it\\nbars an inmate from worshipping with others and from using ritualistic items, we affirm in part,\\nvacate in part, and remand.\\n\\n I.\\n\\n The Michigan prisons allow Wiccan inmates to worship as a group for eight major\\nholidays known as Sabbats, which occur periodically throughout the year. Wiccans celebrate\\nother holidays, called Esbats, each lunar month, approximately twelve to thirteen times a year.\\nCavin wishes to worship with his co-religionists on Esbats. When Cavin observes Esbats by\\nhimself in his cell, he faces additional drawbacks. The prison permits Wiccan inmates to use\\ncandles and incense only in the prison’s chapel, so Cavin cannot access the items that he needs\\nfor rituals. And if his cellmate proves unfriendly, Cavin has trouble conducting religious rites.\\n\\n Cavin asked the Department of Corrections to allow him and other Wiccans to celebrate\\nEsbats together. Officials denied his request. In response, he filed this lawsuit, requesting\\ninjunctive relief under the Religious Land Use and Institutionalized Persons Act (known as\\nRLUIPA to most lawyers). He also sought damages from the Department and Chaplain David\\nLeach, who oversees the Department’s religious programming.\\n\\n At summary judgment, the court ruled that Eleventh Amendment immunity barred the\\ndamages claims against the Department; that Chaplain Leach deserved qualified immunity; and\\nthat only Cavin’s RLUIPA claim for religious accommodation could proceed.\\n\\n After a bench trial, the court rejected Cavin’s RLUIPA claim for injunctive relief,\\nconcluding that the prison’s regulations implicate but do not burden Cavin’s exercise of religion.\\n\\n II.\\n\\n RLUIPA prohibits a State from imposing “a substantial burden on the religious exercise\\nof a person residing in or confined to an institution” unless the government shows that the burden\\nfurthers “a compelling governmental interest” and “is the least restrictive means” of doing so. 42\\nU.S.C. § 2000cc-1(a). That makes the statute a three-act play. In Act One, the inmate must\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 3\\n\\n\\ndemonstrate that he seeks to exercise religion out of a “sincerely held religious belief.” See Holt\\nv. Hobbs, 135 S. Ct. 853, 862 (2015). In Act Two, he must show that the government\\nsubstantially burdened that religious exercise. Id. In Act Three, the government must meet the\\ndaunting compelling-interest and least-restrictive-means test. Id. at 863.\\n\\n Cavin clears RLUIPA’s initial two hurdles.\\n\\n First, the district court found that Cavin’s sincere Wiccan faith motivates his desire for\\ngroup worship on Esbats. The record supports that finding. Cavin testified that he believed\\nEsbat services have “more energy” “when you have a collective of Wiccans together.” R. 66 at\\n21. While he acknowledged that not all Wiccans celebrate Esbats communally, he noted that he\\nand other prisoners would do so if given the chance.\\n\\n Second, the Department’s policy burdens Cavin’s desired religious exercise. Why?\\nBecause it prevents the group worship Cavin seeks. “The greater restriction (barring access to\\nthe practice) includes the lesser one (substantially burdening the practice).” Haight v. Thompson,\\n763 F.3d 554, 565 (6th Cir. 2014). What’s more, the Department’s policy prevents Cavin from\\naccessing religious items found only in the chapel, barring him from properly celebrating Esbats\\nin the way he believes he should. Id.\\n\\n Consider a prior case. A prison prevented Native American inmates from purchasing\\n“corn pemmican and buffalo meat” for a powwow. Id. The denial, we held, constituted a\\nsubstantial burden on the inmate’s religious exercise, even though the inmates could access other\\ntraditional foods. Id. at 565–66. The same is true here. Barring group worship and preventing\\naccess to supplies burdens Cavin’s religious exercise.\\n\\n This burden becomes no less substantial because some—maybe many—Wiccans\\ncelebrate Esbats alone. What matters is that Cavin sincerely believes he should celebrate Esbats\\ncommunally. The Supreme Court made this point in a case involving the right of a Muslim\\nprisoner to grow a beard. The prisoner testified that “not all Muslims believe that men must\\ngrow beards.” Holt, 135 S. Ct. at 862. After noting that the inmate’s belief wasn’t\\n“idiosyncratic,” the court concluded that other believers’ practices didn’t matter. Id. at 862–63.\\nWhy? Because “the protection of RLUIPA, no less than the guarantee of the Free Exercise\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 4\\n\\n\\nClause, is not limited to beliefs which are shared by all of the members of a religious sect.” Id.\\n(quotation omitted).\\n\\n In response, the Department questions Cavin’s sincerity by pointing to evidence that\\nmany Wiccans celebrate privately. To be sure, mainstream religious doctrine can help determine\\nwhether an inmate really believes his professed faith. Haight, 763 F.3d at 567. But the district\\ncourt found Cavin to be sincere, and we see no reason to overturn that factual finding. The\\nDepartment never objected when the court ruled that all accepted Cavin’s sincerity.\\n\\n The Department persists that Cavin isn’t burdened because he merely “prefer[s] to\\ncelebrate in a group setting when possible” and that “celebrating Esbats individually [does] not\\nviolate the tenets of Wicca.” Appellee’s Br. 17. But the Supreme Court shuns this analysis. The\\nMuslim prisoner who wanted to grow a beard testified that “his religion would ‘credit’ him for\\nattempting” to do so, “even if that attempt proved to be unsuccessful.” Holt, 135 S. Ct. at 862.\\nRLUIPA protects religious acts even if they are not “compelled.” 42 U.S.C. § 2000cc–5(7)(A).\\n\\n What of a second-best option: celebrating in his cell? That approach reframes the nature\\nof what Cavin seeks to do: worship with others according to his beliefs. When determining the\\nsubstantiality of a burden, we cannot look to “whether the RLUIPA claimant is able to engage in\\nother forms of religious exercise.” Holt, 135 S. Ct. at 862; see Haight, 763 F.3d at 565. Plus,\\nwhen Cavin worships privately, he cannot access religious supplies kept in the prison chapel.\\n\\n The district court did not proceed to the third prong, namely whether the Department’s\\npolicy prohibiting communal Esbat worship passes strict scrutiny. As “a court of review, not of\\nfirst view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), we will remand the case to the\\ndistrict court to resolve the point in the first instance.\\n\\n III.\\n\\n That leaves Cavin’s damages claims against Chaplain Leach and his argument that the\\ndistrict court erred in refusing to appoint him counsel.\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 5\\n\\n\\n Damages. Cavin offers three possible ways to recover damages from Chaplain Leach:\\nthat RLUIPA provides a damages remedy; that § 1983 provides a separate cause of action to\\nenforce RLUIPA; or that the chaplain violated his First Amendment rights under § 1983.\\n\\n 1. Cavin cannot recover based on RLUIPA alone. Although the statute provides a cause\\nof action by which an individual may “obtain appropriate relief against a government,” 42 U.S.C.\\n§ 2000cc-2(a), it does not authorize monetary judgments against officials in their individual\\ncapacities, see Haight, 763 F.3d at 568. When Congress legislates with its Spending Clause and\\nCommerce Clause powers, as it did to pass RLUIPA, Congress must speak clearly. RLUIPA\\ndoesn’t clearly authorize money damages. Id. at 568–70.\\n\\n 2. Cavin cannot use § 1983 to get damages that RLUIPA does not provide. While we\\ntypically think of § 1983 claims as vindicating constitutional rights, the statute also authorizes\\npeople to sue when state actors deprive them of “any rights, privileges, or immunities secured by\\nthe . . . laws.” 42 U.S.C. § 1983. To determine whether § 1983 allows someone to enforce a\\nfederal statute, we determine whether Congress intended to create an “individually enforceable\\nright” and whether Congress wanted the statute to provide the exclusive remedy. City of Rancho\\nPalos Verdes v. Abrams, 544 U.S. 113, 120–21 (2005).\\n\\n RLUIPA creates an individually enforceable right. Cf. Gonzaga Univ. v. Doe, 536 U.S.\\n273, 287 (2002) (acknowledging that “rights-creating” individually focused language akin to that\\nfound in Titles VI and IX demonstrates congressional intent to create a right enforceable by\\nindividuals). But where, as with RLUIPA, Congress provides an “express” cause of action under\\nthe statute, it ordinarily indicates that plaintiffs cannot access “a more expansive remedy under\\n§ 1983.” City of Rancho Palos Verdes, 544 U.S. at 121; see Fitzgerald v. Barnstable Sch.\\nComm., 555 U.S. 246, 256 (2009). Put another way, the reality that RLUIPA doesn’t allow for\\ndamages indicates that Congress didn’t intend § 1983 to provide a backdoor to achieving a\\ndifferent result. See Fitzgerald, 555 U.S. at 256; City of Rancho Palos Verdes, 544 U.S. at 121.\\n\\n This conclusion comports with our holding that the Spending and Commerce Clauses\\nrequire Congress to state clearly a law’s requirements. See Haight, 763 F.3d at 568. Otherwise,\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 6\\n\\n\\nCongress could end-run that clear-statement rule by enacting vague statutes that don’t speak to\\nwhether parties could sue for damages and allow § 1983 to fill the gap.\\n\\n 3. As for Cavin’s First Amendment damages claim, Chaplain Leach deserves qualified\\nimmunity.\\n\\n Qualified immunity protects those officials whose “conduct does not violate clearly\\nestablished . . . constitutional rights of which a reasonable person would have known.” Harlow\\nv. Fitzgerald, 457 U.S. 800, 818 (1982). That prompts two inquires: (1) Does Cavin have a First\\nAmendment right to communal Esbat services? (2) If so, was that right clearly established?\\n\\n When a prison policy singles out and substantially burdens a prisoner’s sincere beliefs,\\nthe First Amendment requires us to ask whether the policy serves a valid penological interest.\\nSee Turner v. Safley, 482 U.S. 78, 89–91 (1987); O’Lone v. Estate of Shabazz, 482 U.S. 342,\\n349–53 (1987) (applying Turner to a prison free exercise claim); Thomas v. Review Bd. of Ind.\\nEmp’t Sec. Div., 450 U.S. 707, 718 (1981) (applying substantial burden analysis to a free\\nexercise claim). If it does not, the inquiry ends, and the prisoner prevails. See Maye v. Klee,\\n915 F.3d 1076, 1083–84 (6th Cir. 2019); Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010).\\nBut if a regulation serves a penological interest, we must balance (1) whether the prisoner\\npossesses alternative avenues for exercising his religion; (2) whether accommodating the\\nprisoner would affect “guards and other inmates” or “the allocation of prison resources\\ngenerally”; and (3) whether “obvious, easy alternatives” exist that suggest “the regulation is not\\nreasonable.” Turner, 482 U.S. at 89–91.\\n\\n The factors may cut in Cavin’s favor. See Ben-Levi v. Brown, 136 S. Ct. 930, 935–36\\n(2016) (Alito, J., dissenting from the denial of certiorari). But the outcome isn’t so clear as to\\nplace a reasonable official on notice. For one thing, Cavin possesses alternative means of\\npracticing his religion on Sabbats, and he has a second-best way to celebrate Esbats in his cell.\\nThough that analysis does not play into a RLUIPA claim, it bears some weight in the First\\nAmendment context. See Holt, 135 S. Ct. at 862; O’Lone, 482 U.S. at 351–52. For another, it is\\nnotoriously difficult to predict the outcome of a balancing test in advance, making it even more\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 7\\n\\n\\nimportant that precedent place the question beyond doubt. Cf. Sumpter v. Wayne County,\\n868 F.3d 473, 485 (6th Cir. 2017). Cavin hasn’t identified cases that do so.\\n\\n Cavin instead points us to two out-of-circuit district court opinions involving Wiccan\\nprisoners’ religious rights. See LaPlante v. Mass. Dep’t of Corr., 89 F. Supp. 3d 235 (D. Mass.\\n2015) (RLUIPA claim); Rouser v. White, 630 F. Supp. 2d 1165 (E.D. Cal. 2009) (RLUIPA and\\nFirst Amendment claims). But district courts, let alone those in other circuits, don’t provide\\nclearly established precedent. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).\\n\\n Cavin adds that we should deny Leach qualified immunity because precedent can put an\\nofficial on notice even if it does not involve “fundamentally similar” or “materially similar”\\ncircumstances. See Appellant’s Br. 5 (quotation omitted). But the Supreme Court has also told\\nus not to do the qualified immunity analysis from 60,000 feet. See White v. Pauly, 137 S. Ct.\\n548, 552 (2017) (per curiam). Instead, “the clearly established law must be particularized to the\\nfacts of the case.” Id. (quotation omitted). That isn’t so here.\\n\\n Right to counsel. We review the decisions to deny Cavin appointed counsel for an abuse\\nof discretion. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993). None occurred.\\n\\n It is the rare civil case in which a court must provide a party an attorney, and only\\n“exceptional circumstances” require deviating from this rule. Id. District courts look to the\\ncomplexity of the case and the ability of the plaintiff to represent himself. Id.\\n\\n Those factors cut against Cavin. This case does not involve unusually complex issues.\\nAnd Cavin has represented himself admirably. Today’s ruling confirms that. What’s more,\\nabuse of discretion is a highly deferential standard, and we are loath to second guess district\\ncourts. On remand, however, the court remains free to reevaluate its decision.\\n\\n We affirm the grant of qualified immunity to Chaplain Leach and the denial of appointed\\ncounsel, vacate the district court’s decision regarding Cavin’s claim for injunctive relief under\\nRLUIPA, and remand for the district court to conclude whether the Department’s policy survives\\nscrutiny under RLUIPA.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407384/\", \"author_raw\": \"SUTTON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"ROGERS"},"judge2":{"kind":"string","value":"SUTTON"},"judge3":{"kind":"string","value":"READLER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630131/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mario Sentelle CAVIN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS; David Leach, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0129p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n MARIO SENTELLE CAVIN, ┐\n Plaintiff-Appellant, │\n │\n > No. 18-1346\n v. │\n │\n │\n MICHIGAN DEPARTMENT OF CORRECTIONS; DAVID │\n LEACH, │\n Defendants-Appellees. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:15-cv-14449—Bernard A. Friedman, District Judge.\n\n Decided and Filed: June 17, 2019\n\n Before: ROGERS, SUTTON, and READLER, Circuit Judges.\n _________________\n\n COUNSEL\n\nON BRIEF: Mario Sentelle Cavin, New Haven, Michigan, pro se. John L. Thurber, OFFICE\nOF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.\n _________________\n\n OPINION\n _________________\n\n SUTTON, Circuit Judge. Mario Cavin is an inmate in the custody of the Michigan\nDepartment of Corrections who practices Wicca. While the Department permits Cavin and other\nWiccans to congregate on some holidays, it prevents their group worship on others and limits\ntheir use of ritualistic items when alone. Cavin filed this lawsuit to eliminate these restrictions\nand to seek damages. At summary judgment, the district court ruled against Cavin on the\ndamages claim. After a trial, the district court held that the Department’s policy did not\n\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 2\n\n\nsubstantially burden Cavin’s religious exercise under the Religious Land Use and\nInstitutionalized Persons Act. Because a policy substantially burdens religious exercise when it\nbars an inmate from worshipping with others and from using ritualistic items, we affirm in part,\nvacate in part, and remand.\n\n I.\n\n The Michigan prisons allow Wiccan inmates to worship as a group for eight major\nholidays known as Sabbats, which occur periodically throughout the year. Wiccans celebrate\nother holidays, called Esbats, each lunar month, approximately twelve to thirteen times a year.\nCavin wishes to worship with his co-religionists on Esbats. When Cavin observes Esbats by\nhimself in his cell, he faces additional drawbacks. The prison permits Wiccan inmates to use\ncandles and incense only in the prison’s chapel, so Cavin cannot access the items that he needs\nfor rituals. And if his cellmate proves unfriendly, Cavin has trouble conducting religious rites.\n\n Cavin asked the Department of Corrections to allow him and other Wiccans to celebrate\nEsbats together. Officials denied his request. In response, he filed this lawsuit, requesting\ninjunctive relief under the Religious Land Use and Institutionalized Persons Act (known as\nRLUIPA to most lawyers). He also sought damages from the Department and Chaplain David\nLeach, who oversees the Department’s religious programming.\n\n At summary judgment, the court ruled that Eleventh Amendment immunity barred the\ndamages claims against the Department; that Chaplain Leach deserved qualified immunity; and\nthat only Cavin’s RLUIPA claim for religious accommodation could proceed.\n\n After a bench trial, the court rejected Cavin’s RLUIPA claim for injunctive relief,\nconcluding that the prison’s regulations implicate but do not burden Cavin’s exercise of religion.\n\n II.\n\n RLUIPA prohibits a State from imposing “a substantial burden on the religious exercise\nof a person residing in or confined to an institution” unless the government shows that the burden\nfurthers “a compelling governmental interest” and “is the least restrictive means” of doing so. 42\nU.S.C. § 2000cc-1(a). That makes the statute a three-act play. In Act One, the inmate must\n\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 3\n\n\ndemonstrate that he seeks to exercise religion out of a “sincerely held religious belief.” See Holt\nv. Hobbs, 135 S. Ct. 853, 862 (2015). In Act Two, he must show that the government\nsubstantially burdened that religious exercise. Id. In Act Three, the government must meet the\ndaunting compelling-interest and least-restrictive-means test. Id. at 863.\n\n Cavin clears RLUIPA’s initial two hurdles.\n\n First, the district court found that Cavin’s sincere Wiccan faith motivates his desire for\ngroup worship on Esbats. The record supports that finding. Cavin testified that he believed\nEsbat services have “more energy” “when you have a collective of Wiccans together.” R. 66 at\n21. While he acknowledged that not all Wiccans celebrate Esbats communally, he noted that he\nand other prisoners would do so if given the chance.\n\n Second, the Department’s policy burdens Cavin’s desired religious exercise. Why?\nBecause it prevents the group worship Cavin seeks. “The greater restriction (barring access to\nthe practice) includes the lesser one (substantially burdening the practice).” Haight v. Thompson,\n763 F.3d 554, 565 (6th Cir. 2014). What’s more, the Department’s policy prevents Cavin from\naccessing religious items found only in the chapel, barring him from properly celebrating Esbats\nin the way he believes he should. Id.\n\n Consider a prior case. A prison prevented Native American inmates from purchasing\n“corn pemmican and buffalo meat” for a powwow. Id. The denial, we held, constituted a\nsubstantial burden on the inmate’s religious exercise, even though the inmates could access other\ntraditional foods. Id. at 565–66. The same is true here. Barring group worship and preventing\naccess to supplies burdens Cavin’s religious exercise.\n\n This burden becomes no less substantial because some—maybe many—Wiccans\ncelebrate Esbats alone. What matters is that Cavin sincerely believes he should celebrate Esbats\ncommunally. The Supreme Court made this point in a case involving the right of a Muslim\nprisoner to grow a beard. The prisoner testified that “not all Muslims believe that men must\ngrow beards.” Holt, 135 S. Ct. at 862. After noting that the inmate’s belief wasn’t\n“idiosyncratic,” the court concluded that other believers’ practices didn’t matter. Id. at 862–63.\nWhy? Because “the protection of RLUIPA, no less than the guarantee of the Free Exercise\n\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 4\n\n\nClause, is not limited to beliefs which are shared by all of the members of a religious sect.” Id.\n(quotation omitted).\n\n In response, the Department questions Cavin’s sincerity by pointing to evidence that\nmany Wiccans celebrate privately. To be sure, mainstream religious doctrine can help determine\nwhether an inmate really believes his professed faith. Haight, 763 F.3d at 567. But the district\ncourt found Cavin to be sincere, and we see no reason to overturn that factual finding. The\nDepartment never objected when the court ruled that all accepted Cavin’s sincerity.\n\n The Department persists that Cavin isn’t burdened because he merely “prefer[s] to\ncelebrate in a group setting when possible” and that “celebrating Esbats individually [does] not\nviolate the tenets of Wicca.” Appellee’s Br. 17. But the Supreme Court shuns this analysis. The\nMuslim prisoner who wanted to grow a beard testified that “his religion would ‘credit’ him for\nattempting” to do so, “even if that attempt proved to be unsuccessful.” Holt, 135 S. Ct. at 862.\nRLUIPA protects religious acts even if they are not “compelled.” 42 U.S.C. § 2000cc–5(7)(A).\n\n What of a second-best option: celebrating in his cell? That approach reframes the nature\nof what Cavin seeks to do: worship with others according to his beliefs. When determining the\nsubstantiality of a burden, we cannot look to “whether the RLUIPA claimant is able to engage in\nother forms of religious exercise.” Holt, 135 S. Ct. at 862; see Haight, 763 F.3d at 565. Plus,\nwhen Cavin worships privately, he cannot access religious supplies kept in the prison chapel.\n\n The district court did not proceed to the third prong, namely whether the Department’s\npolicy prohibiting communal Esbat worship passes strict scrutiny. As “a court of review, not of\nfirst view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), we will remand the case to the\ndistrict court to resolve the point in the first instance.\n\n III.\n\n That leaves Cavin’s damages claims against Chaplain Leach and his argument that the\ndistrict court erred in refusing to appoint him counsel.\n\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 5\n\n\n Damages. Cavin offers three possible ways to recover damages from Chaplain Leach:\nthat RLUIPA provides a damages remedy; that § 1983 provides a separate cause of action to\nenforce RLUIPA; or that the chaplain violated his First Amendment rights under § 1983.\n\n 1. Cavin cannot recover based on RLUIPA alone. Although the statute provides a cause\nof action by which an individual may “obtain appropriate relief against a government,” 42 U.S.C.\n§ 2000cc-2(a), it does not authorize monetary judgments against officials in their individual\ncapacities, see Haight, 763 F.3d at 568. When Congress legislates with its Spending Clause and\nCommerce Clause powers, as it did to pass RLUIPA, Congress must speak clearly. RLUIPA\ndoesn’t clearly authorize money damages. Id. at 568–70.\n\n 2. Cavin cannot use § 1983 to get damages that RLUIPA does not provide. While we\ntypically think of § 1983 claims as vindicating constitutional rights, the statute also authorizes\npeople to sue when state actors deprive them of “any rights, privileges, or immunities secured by\nthe . . . laws.” 42 U.S.C. § 1983. To determine whether § 1983 allows someone to enforce a\nfederal statute, we determine whether Congress intended to create an “individually enforceable\nright” and whether Congress wanted the statute to provide the exclusive remedy. City of Rancho\nPalos Verdes v. Abrams, 544 U.S. 113, 120–21 (2005).\n\n RLUIPA creates an individually enforceable right. Cf. Gonzaga Univ. v. Doe, 536 U.S.\n273, 287 (2002) (acknowledging that “rights-creating” individually focused language akin to that\nfound in Titles VI and IX demonstrates congressional intent to create a right enforceable by\nindividuals). But where, as with RLUIPA, Congress provides an “express” cause of action under\nthe statute, it ordinarily indicates that plaintiffs cannot access “a more expansive remedy under\n§ 1983.” City of Rancho Palos Verdes, 544 U.S. at 121; see Fitzgerald v. Barnstable Sch.\nComm., 555 U.S. 246, 256 (2009). Put another way, the reality that RLUIPA doesn’t allow for\ndamages indicates that Congress didn’t intend § 1983 to provide a backdoor to achieving a\ndifferent result. See Fitzgerald, 555 U.S. at 256; City of Rancho Palos Verdes, 544 U.S. at 121.\n\n This conclusion comports with our holding that the Spending and Commerce Clauses\nrequire Congress to state clearly a law’s requirements. See Haight, 763 F.3d at 568. Otherwise,\n\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 6\n\n\nCongress could end-run that clear-statement rule by enacting vague statutes that don’t speak to\nwhether parties could sue for damages and allow § 1983 to fill the gap.\n\n 3. As for Cavin’s First Amendment damages claim, Chaplain Leach deserves qualified\nimmunity.\n\n Qualified immunity protects those officials whose “conduct does not violate clearly\nestablished . . . constitutional rights of which a reasonable person would have known.” Harlow\nv. Fitzgerald, 457 U.S. 800, 818 (1982). That prompts two inquires: (1) Does Cavin have a First\nAmendment right to communal Esbat services? (2) If so, was that right clearly established?\n\n When a prison policy singles out and substantially burdens a prisoner’s sincere beliefs,\nthe First Amendment requires us to ask whether the policy serves a valid penological interest.\nSee Turner v. Safley, 482 U.S. 78, 89–91 (1987); O’Lone v. Estate of Shabazz, 482 U.S. 342,\n349–53 (1987) (applying Turner to a prison free exercise claim); Thomas v. Review Bd. of Ind.\nEmp’t Sec. Div., 450 U.S. 707, 718 (1981) (applying substantial burden analysis to a free\nexercise claim). If it does not, the inquiry ends, and the prisoner prevails. See Maye v. Klee,\n915 F.3d 1076, 1083–84 (6th Cir. 2019); Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010).\nBut if a regulation serves a penological interest, we must balance (1) whether the prisoner\npossesses alternative avenues for exercising his religion; (2) whether accommodating the\nprisoner would affect “guards and other inmates” or “the allocation of prison resources\ngenerally”; and (3) whether “obvious, easy alternatives” exist that suggest “the regulation is not\nreasonable.” Turner, 482 U.S. at 89–91.\n\n The factors may cut in Cavin’s favor. See Ben-Levi v. Brown, 136 S. Ct. 930, 935–36\n(2016) (Alito, J., dissenting from the denial of certiorari). But the outcome isn’t so clear as to\nplace a reasonable official on notice. For one thing, Cavin possesses alternative means of\npracticing his religion on Sabbats, and he has a second-best way to celebrate Esbats in his cell.\nThough that analysis does not play into a RLUIPA claim, it bears some weight in the First\nAmendment context. See Holt, 135 S. Ct. at 862; O’Lone, 482 U.S. at 351–52. For another, it is\nnotoriously difficult to predict the outcome of a balancing test in advance, making it even more\n\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 7\n\n\nimportant that precedent place the question beyond doubt. Cf. Sumpter v. Wayne County,\n868 F.3d 473, 485 (6th Cir. 2017). Cavin hasn’t identified cases that do so.\n\n Cavin instead points us to two out-of-circuit district court opinions involving Wiccan\nprisoners’ religious rights. See LaPlante v. Mass. Dep’t of Corr., 89 F. Supp. 3d 235 (D. Mass.\n2015) (RLUIPA claim); Rouser v. White, 630 F. Supp. 2d 1165 (E.D. Cal. 2009) (RLUIPA and\nFirst Amendment claims). But district courts, let alone those in other circuits, don’t provide\nclearly established precedent. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).\n\n Cavin adds that we should deny Leach qualified immunity because precedent can put an\nofficial on notice even if it does not involve “fundamentally similar” or “materially similar”\ncircumstances. See Appellant’s Br. 5 (quotation omitted). But the Supreme Court has also told\nus not to do the qualified immunity analysis from 60,000 feet. See White v. Pauly, 137 S. Ct.\n548, 552 (2017) (per curiam). Instead, “the clearly established law must be particularized to the\nfacts of the case.” Id. (quotation omitted). That isn’t so here.\n\n Right to counsel. We review the decisions to deny Cavin appointed counsel for an abuse\nof discretion. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993). None occurred.\n\n It is the rare civil case in which a court must provide a party an attorney, and only\n“exceptional circumstances” require deviating from this rule. Id. District courts look to the\ncomplexity of the case and the ability of the plaintiff to represent himself. Id.\n\n Those factors cut against Cavin. This case does not involve unusually complex issues.\nAnd Cavin has represented himself admirably. Today’s ruling confirms that. What’s more,\nabuse of discretion is a highly deferential standard, and we are loath to second guess district\ncourts. On remand, however, the court remains free to reevaluate its decision.\n\n We affirm the grant of qualified immunity to Chaplain Leach and the denial of appointed\ncounsel, vacate the district court’s decision regarding Cavin’s claim for injunctive relief under\nRLUIPA, and remand for the district court to conclude whether the Department’s policy survives\nscrutiny under RLUIPA.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mario Sentelle CAVIN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS; David Leach, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0129p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n MARIO SENTELLE CAVIN, ┐\\n Plaintiff-Appellant, │\\n │\\n > No. 18-1346\\n v. │\\n │\\n │\\n MICHIGAN DEPARTMENT OF CORRECTIONS; DAVID │\\n LEACH, │\\n Defendants-Appellees. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Michigan at Detroit.\\n No. 2:15-cv-14449—Bernard A. Friedman, District Judge.\\n\\n Decided and Filed: June 17, 2019\\n\\n Before: ROGERS, SUTTON, and READLER, Circuit Judges.\\n _________________\\n\\n COUNSEL\\n\\nON BRIEF: Mario Sentelle Cavin, New Haven, Michigan, pro se. John L. Thurber, OFFICE\\nOF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n SUTTON, Circuit Judge. Mario Cavin is an inmate in the custody of the Michigan\\nDepartment of Corrections who practices Wicca. While the Department permits Cavin and other\\nWiccans to congregate on some holidays, it prevents their group worship on others and limits\\ntheir use of ritualistic items when alone. Cavin filed this lawsuit to eliminate these restrictions\\nand to seek damages. At summary judgment, the district court ruled against Cavin on the\\ndamages claim. After a trial, the district court held that the Department’s policy did not\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 2\\n\\n\\nsubstantially burden Cavin’s religious exercise under the Religious Land Use and\\nInstitutionalized Persons Act. Because a policy substantially burdens religious exercise when it\\nbars an inmate from worshipping with others and from using ritualistic items, we affirm in part,\\nvacate in part, and remand.\\n\\n I.\\n\\n The Michigan prisons allow Wiccan inmates to worship as a group for eight major\\nholidays known as Sabbats, which occur periodically throughout the year. Wiccans celebrate\\nother holidays, called Esbats, each lunar month, approximately twelve to thirteen times a year.\\nCavin wishes to worship with his co-religionists on Esbats. When Cavin observes Esbats by\\nhimself in his cell, he faces additional drawbacks. The prison permits Wiccan inmates to use\\ncandles and incense only in the prison’s chapel, so Cavin cannot access the items that he needs\\nfor rituals. And if his cellmate proves unfriendly, Cavin has trouble conducting religious rites.\\n\\n Cavin asked the Department of Corrections to allow him and other Wiccans to celebrate\\nEsbats together. Officials denied his request. In response, he filed this lawsuit, requesting\\ninjunctive relief under the Religious Land Use and Institutionalized Persons Act (known as\\nRLUIPA to most lawyers). He also sought damages from the Department and Chaplain David\\nLeach, who oversees the Department’s religious programming.\\n\\n At summary judgment, the court ruled that Eleventh Amendment immunity barred the\\ndamages claims against the Department; that Chaplain Leach deserved qualified immunity; and\\nthat only Cavin’s RLUIPA claim for religious accommodation could proceed.\\n\\n After a bench trial, the court rejected Cavin’s RLUIPA claim for injunctive relief,\\nconcluding that the prison’s regulations implicate but do not burden Cavin’s exercise of religion.\\n\\n II.\\n\\n RLUIPA prohibits a State from imposing “a substantial burden on the religious exercise\\nof a person residing in or confined to an institution” unless the government shows that the burden\\nfurthers “a compelling governmental interest” and “is the least restrictive means” of doing so. 42\\nU.S.C. § 2000cc-1(a). That makes the statute a three-act play. In Act One, the inmate must\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 3\\n\\n\\ndemonstrate that he seeks to exercise religion out of a “sincerely held religious belief.” See Holt\\nv. Hobbs, 135 S. Ct. 853, 862 (2015). In Act Two, he must show that the government\\nsubstantially burdened that religious exercise. Id. In Act Three, the government must meet the\\ndaunting compelling-interest and least-restrictive-means test. Id. at 863.\\n\\n Cavin clears RLUIPA’s initial two hurdles.\\n\\n First, the district court found that Cavin’s sincere Wiccan faith motivates his desire for\\ngroup worship on Esbats. The record supports that finding. Cavin testified that he believed\\nEsbat services have “more energy” “when you have a collective of Wiccans together.” R. 66 at\\n21. While he acknowledged that not all Wiccans celebrate Esbats communally, he noted that he\\nand other prisoners would do so if given the chance.\\n\\n Second, the Department’s policy burdens Cavin’s desired religious exercise. Why?\\nBecause it prevents the group worship Cavin seeks. “The greater restriction (barring access to\\nthe practice) includes the lesser one (substantially burdening the practice).” Haight v. Thompson,\\n763 F.3d 554, 565 (6th Cir. 2014). What’s more, the Department’s policy prevents Cavin from\\naccessing religious items found only in the chapel, barring him from properly celebrating Esbats\\nin the way he believes he should. Id.\\n\\n Consider a prior case. A prison prevented Native American inmates from purchasing\\n“corn pemmican and buffalo meat” for a powwow. Id. The denial, we held, constituted a\\nsubstantial burden on the inmate’s religious exercise, even though the inmates could access other\\ntraditional foods. Id. at 565–66. The same is true here. Barring group worship and preventing\\naccess to supplies burdens Cavin’s religious exercise.\\n\\n This burden becomes no less substantial because some—maybe many—Wiccans\\ncelebrate Esbats alone. What matters is that Cavin sincerely believes he should celebrate Esbats\\ncommunally. The Supreme Court made this point in a case involving the right of a Muslim\\nprisoner to grow a beard. The prisoner testified that “not all Muslims believe that men must\\ngrow beards.” Holt, 135 S. Ct. at 862. After noting that the inmate’s belief wasn’t\\n“idiosyncratic,” the court concluded that other believers’ practices didn’t matter. Id. at 862–63.\\nWhy? Because “the protection of RLUIPA, no less than the guarantee of the Free Exercise\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 4\\n\\n\\nClause, is not limited to beliefs which are shared by all of the members of a religious sect.” Id.\\n(quotation omitted).\\n\\n In response, the Department questions Cavin’s sincerity by pointing to evidence that\\nmany Wiccans celebrate privately. To be sure, mainstream religious doctrine can help determine\\nwhether an inmate really believes his professed faith. Haight, 763 F.3d at 567. But the district\\ncourt found Cavin to be sincere, and we see no reason to overturn that factual finding. The\\nDepartment never objected when the court ruled that all accepted Cavin’s sincerity.\\n\\n The Department persists that Cavin isn’t burdened because he merely “prefer[s] to\\ncelebrate in a group setting when possible” and that “celebrating Esbats individually [does] not\\nviolate the tenets of Wicca.” Appellee’s Br. 17. But the Supreme Court shuns this analysis. The\\nMuslim prisoner who wanted to grow a beard testified that “his religion would ‘credit’ him for\\nattempting” to do so, “even if that attempt proved to be unsuccessful.” Holt, 135 S. Ct. at 862.\\nRLUIPA protects religious acts even if they are not “compelled.” 42 U.S.C. § 2000cc–5(7)(A).\\n\\n What of a second-best option: celebrating in his cell? That approach reframes the nature\\nof what Cavin seeks to do: worship with others according to his beliefs. When determining the\\nsubstantiality of a burden, we cannot look to “whether the RLUIPA claimant is able to engage in\\nother forms of religious exercise.” Holt, 135 S. Ct. at 862; see Haight, 763 F.3d at 565. Plus,\\nwhen Cavin worships privately, he cannot access religious supplies kept in the prison chapel.\\n\\n The district court did not proceed to the third prong, namely whether the Department’s\\npolicy prohibiting communal Esbat worship passes strict scrutiny. As “a court of review, not of\\nfirst view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), we will remand the case to the\\ndistrict court to resolve the point in the first instance.\\n\\n III.\\n\\n That leaves Cavin’s damages claims against Chaplain Leach and his argument that the\\ndistrict court erred in refusing to appoint him counsel.\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 5\\n\\n\\n Damages. Cavin offers three possible ways to recover damages from Chaplain Leach:\\nthat RLUIPA provides a damages remedy; that § 1983 provides a separate cause of action to\\nenforce RLUIPA; or that the chaplain violated his First Amendment rights under § 1983.\\n\\n 1. Cavin cannot recover based on RLUIPA alone. Although the statute provides a cause\\nof action by which an individual may “obtain appropriate relief against a government,” 42 U.S.C.\\n§ 2000cc-2(a), it does not authorize monetary judgments against officials in their individual\\ncapacities, see Haight, 763 F.3d at 568. When Congress legislates with its Spending Clause and\\nCommerce Clause powers, as it did to pass RLUIPA, Congress must speak clearly. RLUIPA\\ndoesn’t clearly authorize money damages. Id. at 568–70.\\n\\n 2. Cavin cannot use § 1983 to get damages that RLUIPA does not provide. While we\\ntypically think of § 1983 claims as vindicating constitutional rights, the statute also authorizes\\npeople to sue when state actors deprive them of “any rights, privileges, or immunities secured by\\nthe . . . laws.” 42 U.S.C. § 1983. To determine whether § 1983 allows someone to enforce a\\nfederal statute, we determine whether Congress intended to create an “individually enforceable\\nright” and whether Congress wanted the statute to provide the exclusive remedy. City of Rancho\\nPalos Verdes v. Abrams, 544 U.S. 113, 120–21 (2005).\\n\\n RLUIPA creates an individually enforceable right. Cf. Gonzaga Univ. v. Doe, 536 U.S.\\n273, 287 (2002) (acknowledging that “rights-creating” individually focused language akin to that\\nfound in Titles VI and IX demonstrates congressional intent to create a right enforceable by\\nindividuals). But where, as with RLUIPA, Congress provides an “express” cause of action under\\nthe statute, it ordinarily indicates that plaintiffs cannot access “a more expansive remedy under\\n§ 1983.” City of Rancho Palos Verdes, 544 U.S. at 121; see Fitzgerald v. Barnstable Sch.\\nComm., 555 U.S. 246, 256 (2009). Put another way, the reality that RLUIPA doesn’t allow for\\ndamages indicates that Congress didn’t intend § 1983 to provide a backdoor to achieving a\\ndifferent result. See Fitzgerald, 555 U.S. at 256; City of Rancho Palos Verdes, 544 U.S. at 121.\\n\\n This conclusion comports with our holding that the Spending and Commerce Clauses\\nrequire Congress to state clearly a law’s requirements. See Haight, 763 F.3d at 568. Otherwise,\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 6\\n\\n\\nCongress could end-run that clear-statement rule by enacting vague statutes that don’t speak to\\nwhether parties could sue for damages and allow § 1983 to fill the gap.\\n\\n 3. As for Cavin’s First Amendment damages claim, Chaplain Leach deserves qualified\\nimmunity.\\n\\n Qualified immunity protects those officials whose “conduct does not violate clearly\\nestablished . . . constitutional rights of which a reasonable person would have known.” Harlow\\nv. Fitzgerald, 457 U.S. 800, 818 (1982). That prompts two inquires: (1) Does Cavin have a First\\nAmendment right to communal Esbat services? (2) If so, was that right clearly established?\\n\\n When a prison policy singles out and substantially burdens a prisoner’s sincere beliefs,\\nthe First Amendment requires us to ask whether the policy serves a valid penological interest.\\nSee Turner v. Safley, 482 U.S. 78, 89–91 (1987); O’Lone v. Estate of Shabazz, 482 U.S. 342,\\n349–53 (1987) (applying Turner to a prison free exercise claim); Thomas v. Review Bd. of Ind.\\nEmp’t Sec. Div., 450 U.S. 707, 718 (1981) (applying substantial burden analysis to a free\\nexercise claim). If it does not, the inquiry ends, and the prisoner prevails. See Maye v. Klee,\\n915 F.3d 1076, 1083–84 (6th Cir. 2019); Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010).\\nBut if a regulation serves a penological interest, we must balance (1) whether the prisoner\\npossesses alternative avenues for exercising his religion; (2) whether accommodating the\\nprisoner would affect “guards and other inmates” or “the allocation of prison resources\\ngenerally”; and (3) whether “obvious, easy alternatives” exist that suggest “the regulation is not\\nreasonable.” Turner, 482 U.S. at 89–91.\\n\\n The factors may cut in Cavin’s favor. See Ben-Levi v. Brown, 136 S. Ct. 930, 935–36\\n(2016) (Alito, J., dissenting from the denial of certiorari). But the outcome isn’t so clear as to\\nplace a reasonable official on notice. For one thing, Cavin possesses alternative means of\\npracticing his religion on Sabbats, and he has a second-best way to celebrate Esbats in his cell.\\nThough that analysis does not play into a RLUIPA claim, it bears some weight in the First\\nAmendment context. See Holt, 135 S. Ct. at 862; O’Lone, 482 U.S. at 351–52. For another, it is\\nnotoriously difficult to predict the outcome of a balancing test in advance, making it even more\\n\\f No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 7\\n\\n\\nimportant that precedent place the question beyond doubt. Cf. Sumpter v. Wayne County,\\n868 F.3d 473, 485 (6th Cir. 2017). Cavin hasn’t identified cases that do so.\\n\\n Cavin instead points us to two out-of-circuit district court opinions involving Wiccan\\nprisoners’ religious rights. See LaPlante v. Mass. Dep’t of Corr., 89 F. Supp. 3d 235 (D. Mass.\\n2015) (RLUIPA claim); Rouser v. White, 630 F. Supp. 2d 1165 (E.D. Cal. 2009) (RLUIPA and\\nFirst Amendment claims). But district courts, let alone those in other circuits, don’t provide\\nclearly established precedent. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).\\n\\n Cavin adds that we should deny Leach qualified immunity because precedent can put an\\nofficial on notice even if it does not involve “fundamentally similar” or “materially similar”\\ncircumstances. See Appellant’s Br. 5 (quotation omitted). But the Supreme Court has also told\\nus not to do the qualified immunity analysis from 60,000 feet. See White v. Pauly, 137 S. Ct.\\n548, 552 (2017) (per curiam). Instead, “the clearly established law must be particularized to the\\nfacts of the case.” Id. (quotation omitted). That isn’t so here.\\n\\n Right to counsel. We review the decisions to deny Cavin appointed counsel for an abuse\\nof discretion. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993). None occurred.\\n\\n It is the rare civil case in which a court must provide a party an attorney, and only\\n“exceptional circumstances” require deviating from this rule. Id. District courts look to the\\ncomplexity of the case and the ability of the plaintiff to represent himself. Id.\\n\\n Those factors cut against Cavin. This case does not involve unusually complex issues.\\nAnd Cavin has represented himself admirably. Today’s ruling confirms that. What’s more,\\nabuse of discretion is a highly deferential standard, and we are loath to second guess district\\ncourts. On remand, however, the court remains free to reevaluate its decision.\\n\\n We affirm the grant of qualified immunity to Chaplain Leach and the denial of appointed\\ncounsel, vacate the district court’s decision regarding Cavin’s claim for injunctive relief under\\nRLUIPA, and remand for the district court to conclude whether the Department’s policy survives\\nscrutiny under RLUIPA.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2499,"cells":{"id":{"kind":"number","value":4630571,"string":"4,630,571"},"name":{"kind":"string","value":"Perley WINKLER, Petitioner-Appellant, v. Mike PARRIS, Warden, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Perley Winkler v. Mike Parris"},"decision_date":{"kind":"string","value":"2019-06-18"},"docket_number":{"kind":"string","value":"18-5301"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Sixth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Suhrheinrich, Thapar, Larsen\", \"parties\": \"\", \"opinions\": [{\"author\": \"SUHRHEINRICH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"RECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0130p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n PERLEY WINKLER, ┐\\n Petitioner-Appellant, │\\n │\\n > No. 18-5301\\n v. │\\n │\\n │\\n MIKE PARRIS, Warden, │\\n Respondent-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee at Knoxville.\\n No. 3:14-cv-00509—Pamela Lynn Reeves, District Judge.\\n\\n Argued: May 8, 2019\\n\\n Decided and Filed: June 18, 2019\\n\\n Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Jennifer L. Dollard-Smith, SQUIRE PATTON BOGGS (US) LLP, Cincinnati,\\nOhio, for Appellant. T. Austin Watkins, OFFICE OF THE ATTORNEY GENERAL, Nashville,\\nTennessee, for Appellee. ON BRIEF: Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON\\nBOGGS (US) LLP, Cincinnati, Ohio, Nathan L. Colvin, VORYS, SATER, SEYMOUR, AND\\nPEASE LLP, Cincinnati, Ohio, for Appellant. T. Austin Watkins, OFFICE OF THE\\nATTORNEY GENERAL, Nashville, Tennessee, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n SUHRHEINRICH, Circuit Judge. Perley Winkler, Jr. was convicted in Tennessee state\\ncourt of two counts of attempted first-degree murder and one count of attempted aggravated\\n\\f No. 18-5301 Winkler v. Parris Page 2\\n\\n\\narson. He now petitions for habeas relief, alleging his appellate counsel was constitutionally\\nineffective for failing to submit a small portion of his trial court record on appeal. He asserts that\\nunder Entsminger v. Iowa, 386 U.S. 748 (1967), the failure to file a portion of the record entitles\\nhim to presumed prejudice in the ineffective-assistance analysis. We reject Winkler’s argument,\\nAFFIRM the district court, and DENY the habeas petition.\\n\\n I. FACTS\\n\\n The prosecution’s case against Winkler primarily was based on the testimony of two\\nwitnesses: John Senn, and his girlfriend (now wife) Sherri Turpin Senn. John Senn testified that\\non the morning of April 17, 2007, one of his pit bull dogs woke him up. As he got up to let the\\ndog outside, he looked out the small window in his back door and saw Winkler and Michael\\nAaron Jenkins in his yard. Senn testified that Jenkins was holding a gasoline jug, but that he\\ndropped it and ran into the woods with Winkler. Senn testified that he woke up Sherri and told\\nher to call the police. Senn testified that, in the meantime, he grabbed his gun, walked onto the\\nback porch, and fired eight shots into the woods. As he walked outside, Senn smelled gasoline\\nand saw that it had been poured in his jacuzzi, on his back porch, on the side of his house, and on\\nboth of his cars.\\n\\n Sherri Turpin Senn corroborated most of John Senn’s story. She also testified that her\\nbrother, Steve Abercrombie, had been in a long-running feud with Winkler, and that Mr.\\nAbercrombie lived approximately 100 yards from her house. She testified that, one week before\\nthe incident, her sister-in-law, Lisa Abercrombie, played for her a voicemail message that\\nWinkler had left on Mrs. Abercrombie’s cellular telephone. According to Sherri Turpin Senn,\\nWinkler said, “You are going to die, you are going to burn.” She explained that she grew up\\nwith Winkler and had heard his voice “thousands” of times, so she recognized it on the\\nvoicemail.\\n\\n Relevant to this appeal, Winkler raised two evidentiary objections during trial. First,\\nWinkler wanted to impeach John Senn with his previous felony conviction for reckless\\nendangerment. The trial judge kept the conviction out, finding that it was more than ten years\\nold and had little probative value. Second, Winkler objected to Sherri Turpin Senn’s testimony\\n\\f No. 18-5301 Winkler v. Parris Page 3\\n\\n\\nabout the voicemail as inadmissible character evidence. The trial judge overruled Winkler’s\\nobjection (and a best-evidence objection from co-defendant’s counsel) and allowed Sherri Turpin\\nSenn to testify about what she heard on the voicemail.\\n\\n The jury convicted Winkler of two counts of attempted first-degree murder and one count\\nof attempted aggravated arson. After an unsuccessful motion for a new trial on the evidentiary\\nissues, Winkler appealed. His counsel filed nearly the entire trial court record—except for the\\ntranscript of his motion for a new trial. Without it, the Tennessee Court of Criminal Appeals\\n(TCCA) reviewed the evidentiary issues for plain error, found none, and affirmed Winkler’s\\nconviction.1 State v. Michael Aaron Jenkins and Perley Winkler, Jr., No. E2008–02321–CCA–\\nR3–CD, 2011 WL 578593, at *6 (Tenn. Crim. App., Feb. 17, 2011), appeal denied (Tenn. May\\n25, 2011).\\n\\n The TCCA also denied Winkler’s petition for post-conviction relief, stating “[t]he fact\\nthat trial counsel failed to prepare an adequate appellate record does not, standing alone, amount\\nto ineffective assistance of counsel.” Winkler v. State, No. E2012-02647-CCA-R3PC, 2014 WL\\n545479, at *9 (Tenn. Crim. App. Feb. 10, 2014), appeal denied (Tenn. July 16, 2014). Instead,\\nthe TCCA concluded that Winkler must show what was left out of the record, and how he was\\nprejudiced by the omission. Id.\\n\\n Winkler now petitions for habeas relief, arguing that he was not required to prove actual\\nprejudice under Entsminger. Therefore, according to Winkler, the TCCA’s decision was\\ncontrary to clearly established Supreme Court precedent. Alternatively, Winkler says he can\\nshow actual prejudice. The district court denied Winkler’s petition but granted him a certificate\\nof appealability.\\n II. STANDARD OF REVIEW\\n\\n After a state court has adjudicated a claim on the merits, a federal court may only issue a\\nwrit of habeas corpus in two instances: (1) if the state court’s decision was “contrary to, or\\n\\n 1The Tennessee Rules of Appellate procedure require that a party seeking review of the admission or\\nexclusion of evidence in a case tried by a jury must first make a motion for a new trial on those grounds. Tenn. R.\\nApp. P. 3(e). If a party does not move for a new trial before appeal, the issue will be treated as waived, id., and can\\nonly be reviewed for plain error, Tenn. R. App. P. 36(b).\\n\\f No. 18-5301 Winkler v. Parris Page 4\\n\\n\\ninvolved an unreasonable application of, clearly established Federal law, as determined by the\\nSupreme Court of the United States;” or (2) the “decision . . . was based on an unreasonable\\ndetermination of the facts in light of the evidence presented in the State court proceeding.” 28\\nU.S.C. § 2254(d)(1)–(2). For the “clearly established” route, we may only consider holdings—\\nand not dicta—of the Supreme Court, Woods v. Donald, 135 S. Ct. 1372, 1376 (2015), and only\\nholdings that were precedent when the state court adjudicated the issue, Greene v. Fisher, 565\\nU.S. 34, 38 (2011). We review the district court’s legal habeas corpus decisions de novo and its\\nfactual findings for clear error. Hand v. Houk, 871 F.3d 390, 406 (6th Cir. 2017).\\n\\n III. ANALYSIS\\n\\n The Supreme Court has held that the right to effective assistance of counsel extends to\\nappeals. Smith v. Robbins, 528 U.S. 259, 276–77, 285 (2000); Evitts v. Lucey, 469 U.S. 387,\\n396–405 (1985). A petitioner claiming ineffective assistance of counsel must show that\\ncounsel’s performance was deficient, and that the petitioner was prejudiced as a result.\\nStrickland v. Washington, 466 U.S. 668, 687 (1984). This “is never an easy task.” Padilla v.\\nKentucky, 559 U.S. 356, 371 (2010). “[S]o long as fairminded jurists could disagree on the\\ncorrectness of [the state court’s] decision”—even if it was ultimately incorrect—we must deny\\nthe petition. Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and\\ncitation omitted).\\n\\n Winkler and the State agree that trial counsel’s failure to file the transcript from the\\nmotion for a new trial was deficient performance. See also Moore v. Carlton, 74 F.3d 689, 693\\n(6th Cir. 1996) (“[I]t seems clear that failing to file a significant portion of the record on direct\\nappeal constitutes deficient performance.”). Therefore, we consider only whether Winkler was\\nprejudiced as a result.\\n\\n Presumed Prejudice. In certain cases, counsel is so ineffective that prejudice is\\npresumed. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019). On appeal, “[t]he lodestar that\\nguides courts to presume prejudice is whether the attorney’s actions effectively ‘deprived [the\\ndefendant] of the appellate proceeding altogether.’” Carter v. Parris, 910 F.3d 835, 842 (6th\\nCir. 2018) (alteration in original) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). The\\n\\f No. 18-5301 Winkler v. Parris Page 5\\n\\n\\nSupreme Court has presumed prejudice on appeal only in a limited number of situations:\\n(1) when a defendant is denied appellate counsel, Flores-Ortega, 528 U.S. at 483; and (2) when\\nappellate counsel fails to file a notice of appeal, Garza, 139 S. Ct. at 750. The Sixth Circuit has,\\nsimilarly, presumed prejudice when appellate counsel fails to file an appellate brief. See\\nHardaway v. Robinson, 655 F.3d 445, 449 (6th Cir. 2011). The common theme among these\\ncases is that the defendant lost the ability to appeal altogether.\\n\\n Winkler purports to identify an additional presumed-prejudice scenario. He asserts that\\nthe Supreme Court’s decision in Entsminger v. Iowa, 386 U.S. 748 (1967), sets a bright-line rule\\nthat prejudice is presumed whenever an attorney fails to file a portion of the trial court record on\\nappeal. We do not read Entsminger so broadly.\\n\\n In Entsminger, appointed counsel, believing that an appeal would have no merit, did not\\nfile the entire record. 386 U.S. at 750. Instead, he filed only the clerk’s transcript (essentially a\\ndocket sheet), which did not contain a transcript of the evidence, the briefs, or the argument of\\ncounsel. Id. at 749. The Iowa Supreme Court affirmed the defendant’s conviction despite\\ndefendant’s request for the full record. Id. at 750. The Supreme Court reversed, stating that\\n“there is no question but that [defendant] was precluded from obtaining a complete and effective\\nappellate review of his conviction by the operation of the clerk’s transcript.” Id. at 752. The\\nCourt then remanded the case for consideration with the full record. Id.\\n\\n Thus, in Entsminger, the defendant lost “all hope of any (adequate and effective) appeal”\\nbecause the attorney chose not to file the entire record and the state appellate court refused to\\norder it despite the defendant’s request. Id. (citation and internal quotation marks omitted).\\nEnstminger predates Strickland’s deficient performance and prejudice framework, but its\\nreasoning suggests that prejudice is presumed when the defendant is entirely prevented from\\npresenting the trial court record to the appellate court.2 But that is not what happened here.\\n\\n\\n 2\\n Another pre-Strickland case, Hardy v. United States, 375 U.S. 277 (1964), shows what happens when\\nappellate counsel cannot access the full trial transcript. There, an indigent defendant filed a pro se application for\\nleave to appeal. Id. at 278. The court of appeals ordered only the parts of the transcript referenced in the\\ndefendant’s conclusory allegations on appeal. Id. Pro bono counsel, appointed after defendant filed his application,\\nfiled a motion with the court of appeals requesting the entire transcript. Id. The court of appeals denied the motion.\\nId. The Supreme Court reversed, concluding that “counsel’s duty cannot be discharged unless he has a transcript of\\n\\f No. 18-5301 Winkler v. Parris Page 6\\n\\n\\n Winkler’s counsel filed a notice of appeal. He wrote two briefs. He submitted a record\\nof over 800 pages, including the trial transcripts and exhibits, and failed to submit only the\\ntranscript (about six pages) from the post-trial hearing on Winkler’s motion for a new trial. The\\nTCCA then reviewed his conviction for sufficiency of the evidence. Thus, Winkler was not, by a\\nlong shot, “deprived . . . of the appellate proceeding altogether.” Flores-Ortega, 528 U.S. 483.\\nTwo post-Strickland Sixth Circuit cases lend support to this conclusion.\\n\\n In Moore v. Carlton, the petitioner sought a writ of habeas corpus based on his appellate\\ncounsel’s failure to file a complete trial transcript. 74 F.3d at 690. Both the TCCA and the\\ndistrict court rejected petitioner’s ineffective assistance of counsel claims because he could not\\nshow prejudice. Id. We affirmed. Id. at 694. Using the two-part Strickland analysis, we held:\\n“[I]t seems clear that failing to file a significant portion of the record on direct appeal constitutes\\ndeficient performance, when the sufficiency of the evidence is an issue.” Id. at 692–93 (citing\\nEntsminger, 386 U.S. at 750–51). “However,” we continued, “the prejudice prong of this claim\\nmust also be hurdled.” Id. at 693. We concluded that “ample evidence” supported petitioner’s\\nconviction and that there was “not even a modicum of evidence here that the incomplete\\ntranscript resulted in actual prejudice.” Id.\\n\\n Similarly, in Bransford v. Brown, the petitioner raised due process and ineffective\\nassistance claims when his appellate counsel failed to obtain the transcripts of the jury\\ninstructions. 806 F.2d 83, 84 (6th Cir. 1986). But appellate counsel did so based upon his\\nconversations with trial counsel. Id. at 83–84. We held that where “[petitioner’s] trial attorney\\ncommunicated with his appellate attorney, the absence of the jury instruction transcripts is not a\\nper se denial of his due process rights to a fair appeal. Instead, in order to demonstrate denial of\\na fair appeal, petitioner must show prejudice resulting from the missing transcripts.” Id. at 86\\n(citations omitted). Likewise, applying Strickland, we held that although appellate counsel’s\\nperformance was deficient due to his failure to secure the transcript of the jury instructions, there\\nwas no prejudice because appellate counsel “did review the bulk of the trial proceedings and\\nperfected an appeal on behalf of petitioner, which appeal was heard on the merits.” Id. at 87.\\n\\n\\nthe testimony and evidence presented by the defendant and also the court’s charge to the jury, as well as the\\ntestimony and evidence presented by the prosecution.” Id. at 282.\\n\\f No. 18-5301 Winkler v. Parris Page 7\\n\\n\\nWe “recognize[d] the difficulties inherent in an attempt to prove prejudice when no record exists\\nof the proceedings at issue,” but nonetheless concluded that “petitioner must present us with\\nsomething more than rank speculation.” Id.\\n\\n In short, based on clear precedent, a presumption of prejudice arises only when the\\npetitioner is effectively prevented from presenting any part of the trial court record on appeal\\nbecause counsel fails to file it and the court fails to obtain it. In all other ineffective assistance\\ncases regarding the trial court record on appeal, a petitioner must show actual prejudice. Here,\\nWinkler’s counsel filed a significant portion of the trial court record on appeal. Therefore,\\nWinkler is not entitled to presumed prejudice. Instead, he must show actual prejudice resulting\\nfrom his counsel’s deficient performance.\\n\\n Actual Prejudice. To do that, Winkler must show that “there is a reasonable probability\\nthat inclusion of the [evidentiary] issue[s] would have changed the result of the appeal.”\\nMcFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). “The likelihood of a different result\\nmust be substantial, not just conceivable.” Harrington, 562 U.S. at 112 (citation omitted). We\\nconsider each piece of evidence in turn and “decide whether there is a reasonable probability that\\nthe claim would have prevailed at the time counsel failed to raise it.” McFarland, 356 F.3d at\\n699.\\n\\n The stale conviction. Winkler asserts that there is a reasonable probability that the TCCA\\nwould have reversed the trial judge’s decision to omit any reference to John Senn’s stale felony\\nconviction for reckless endangerment. We disagree. The TCCA would have reviewed the trial\\njudge’s decision for an abuse of discretion. State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).\\nIn Tennessee, a party may only present evidence of a witness’s prior conviction to attack the\\nwitness’s credibility if that conviction was for a felony or if the crime “involved dishonesty or\\nfalse statement.” Tenn. R. Evid. 609(a)(2). Although Senn’s conviction was a felony, it was\\nmore than ten years old. Therefore, it was only admissible if its probative value substantially\\noutweighed its prejudicial effect. Tenn. R. Evid. 609(b).\\n\\n Winkler asserts that the conviction was probative because, as a felon, Senn could not own\\nor discharge a firearm. Thus, Senn could have been prosecuted for firing the gun, so he had to\\n\\f No. 18-5301 Winkler v. Parris Page 8\\n\\n\\n“invent a reason to justify his gunplay to the police.” The trial judge determined the conviction\\nhad little probative value and that Winkler’s reasoning for offering it was collateral to the\\nquestion at trial—i.e., whether Winkler attempted to burn down Senn’s house. The trial judge’s\\nreasoning is sound, and we do not see any substantial likelihood that the TCCA would have\\ndetermined that the trial judge abused her discretion.\\n\\n The voicemail. Winkler also asserts that the there is a reasonable probability that the\\nTCCA would have reversed the trial judge’s decision to let Sherri Turpin Senn testify that she\\nheard Winkler say, “You are going to die, you are going to burn,” in a voicemail. Again, we\\ndisagree.\\n\\n Winker first attempts to characterize the voicemail statement as inadmissible character\\nevidence. See Tenn. R. Evid. 404(b). In Winkler’s view, his voicemail to Lisa Abercrombie was\\na prior bad act that the State used to show that he was an arsonist, and that he was acting in\\nconformity with that trait when he poured gasoline on the Senns’ house. However, the voicemail\\nwas evidence that Winkler threatened direct harm against Sherri Turpin Senn. She and Lisa\\nAbercrombie were sisters-in-law, their houses were only 100 yards apart, and Winkler was\\nengaged in a long-running feud with her entire family. Threats of direct harm are not barred by\\nRule 404(b) because they “show [the] defendant’s hostility toward the victim, malice, intent, and\\na settled purpose to harm the victim.” State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see\\nalso State v. Bias, No. E2007-01452-CCA-R3-CD, 2009 WL 3817291, at *15 (Tenn. Crim. App.\\nNov. 16, 2009) (holding trial court properly admitted threat “if you call the law I will come back\\nand kill you and burn your house”).\\n\\n Winkler also asserts that Sherri Turpin Senn’s testimony about the voicemail is not the\\nbest evidence of the voicemail. We note, however, that the best evidence rule is one of\\npreference, and the original recording is not required if it has been lost, destroyed, or is\\nunobtainable. Tenn. R. Evid. 1004(1)–(2). On post-conviction review, Lisa Abercrombie (to\\nwhom the voicemail was originally sent) and Andrew Freiberg (the prosecutor) testified that the\\nvoicemail no longer existed at the time of Winkler’s trial. Absent the original recording, the best\\nevidence rule is inapplicable.\\n\\f No. 18-5301 Winkler v. Parris Page 9\\n\\n\\n IV. CONCLUSION\\n\\n Prejudice is presumed only in limited instances on appeal. The failure to file a small\\nportion of a trial court record is not one of them. Therefore, the TCCA’s decision to deny\\nWinkler’s ineffective-assistance claim was neither contrary to, nor an unreasonable application\\nof, clearly-established Supreme Court precedent.\\n\\n We AFFIRM the district court and DENY Winkler’s petition.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407824/\", \"author_raw\": \"SUHRHEINRICH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"SUHRHEINRICH"},"judge2":{"kind":"string","value":"THAPAR"},"judge3":{"kind":"string","value":"LARSEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630571/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Perley WINKLER, Petitioner-Appellant, v. Mike PARRIS, Warden, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Sixth Circuit\nDate decided: 2019-06-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nRECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0130p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n PERLEY WINKLER, ┐\n Petitioner-Appellant, │\n │\n > No. 18-5301\n v. │\n │\n │\n MIKE PARRIS, Warden, │\n Respondent-Appellee. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Tennessee at Knoxville.\n No. 3:14-cv-00509—Pamela Lynn Reeves, District Judge.\n\n Argued: May 8, 2019\n\n Decided and Filed: June 18, 2019\n\n Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Jennifer L. Dollard-Smith, SQUIRE PATTON BOGGS (US) LLP, Cincinnati,\nOhio, for Appellant. T. Austin Watkins, OFFICE OF THE ATTORNEY GENERAL, Nashville,\nTennessee, for Appellee. ON BRIEF: Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON\nBOGGS (US) LLP, Cincinnati, Ohio, Nathan L. Colvin, VORYS, SATER, SEYMOUR, AND\nPEASE LLP, Cincinnati, Ohio, for Appellant. T. Austin Watkins, OFFICE OF THE\nATTORNEY GENERAL, Nashville, Tennessee, for Appellee.\n _________________\n\n OPINION\n _________________\n\n SUHRHEINRICH, Circuit Judge. Perley Winkler, Jr. was convicted in Tennessee state\ncourt of two counts of attempted first-degree murder and one count of attempted aggravated\n\f No. 18-5301 Winkler v. Parris Page 2\n\n\narson. He now petitions for habeas relief, alleging his appellate counsel was constitutionally\nineffective for failing to submit a small portion of his trial court record on appeal. He asserts that\nunder Entsminger v. Iowa, 386 U.S. 748 (1967), the failure to file a portion of the record entitles\nhim to presumed prejudice in the ineffective-assistance analysis. We reject Winkler’s argument,\nAFFIRM the district court, and DENY the habeas petition.\n\n I. FACTS\n\n The prosecution’s case against Winkler primarily was based on the testimony of two\nwitnesses: John Senn, and his girlfriend (now wife) Sherri Turpin Senn. John Senn testified that\non the morning of April 17, 2007, one of his pit bull dogs woke him up. As he got up to let the\ndog outside, he looked out the small window in his back door and saw Winkler and Michael\nAaron Jenkins in his yard. Senn testified that Jenkins was holding a gasoline jug, but that he\ndropped it and ran into the woods with Winkler. Senn testified that he woke up Sherri and told\nher to call the police. Senn testified that, in the meantime, he grabbed his gun, walked onto the\nback porch, and fired eight shots into the woods. As he walked outside, Senn smelled gasoline\nand saw that it had been poured in his jacuzzi, on his back porch, on the side of his house, and on\nboth of his cars.\n\n Sherri Turpin Senn corroborated most of John Senn’s story. She also testified that her\nbrother, Steve Abercrombie, had been in a long-running feud with Winkler, and that Mr.\nAbercrombie lived approximately 100 yards from her house. She testified that, one week before\nthe incident, her sister-in-law, Lisa Abercrombie, played for her a voicemail message that\nWinkler had left on Mrs. Abercrombie’s cellular telephone. According to Sherri Turpin Senn,\nWinkler said, “You are going to die, you are going to burn.” She explained that she grew up\nwith Winkler and had heard his voice “thousands” of times, so she recognized it on the\nvoicemail.\n\n Relevant to this appeal, Winkler raised two evidentiary objections during trial. First,\nWinkler wanted to impeach John Senn with his previous felony conviction for reckless\nendangerment. The trial judge kept the conviction out, finding that it was more than ten years\nold and had little probative value. Second, Winkler objected to Sherri Turpin Senn’s testimony\n\f No. 18-5301 Winkler v. Parris Page 3\n\n\nabout the voicemail as inadmissible character evidence. The trial judge overruled Winkler’s\nobjection (and a best-evidence objection from co-defendant’s counsel) and allowed Sherri Turpin\nSenn to testify about what she heard on the voicemail.\n\n The jury convicted Winkler of two counts of attempted first-degree murder and one count\nof attempted aggravated arson. After an unsuccessful motion for a new trial on the evidentiary\nissues, Winkler appealed. His counsel filed nearly the entire trial court record—except for the\ntranscript of his motion for a new trial. Without it, the Tennessee Court of Criminal Appeals\n(TCCA) reviewed the evidentiary issues for plain error, found none, and affirmed Winkler’s\nconviction.1 State v. Michael Aaron Jenkins and Perley Winkler, Jr., No. E2008–02321–CCA–\nR3–CD, 2011 WL 578593, at *6 (Tenn. Crim. App., Feb. 17, 2011), appeal denied (Tenn. May\n25, 2011).\n\n The TCCA also denied Winkler’s petition for post-conviction relief, stating “[t]he fact\nthat trial counsel failed to prepare an adequate appellate record does not, standing alone, amount\nto ineffective assistance of counsel.” Winkler v. State, No. E2012-02647-CCA-R3PC, 2014 WL\n545479, at *9 (Tenn. Crim. App. Feb. 10, 2014), appeal denied (Tenn. July 16, 2014). Instead,\nthe TCCA concluded that Winkler must show what was left out of the record, and how he was\nprejudiced by the omission. Id.\n\n Winkler now petitions for habeas relief, arguing that he was not required to prove actual\nprejudice under Entsminger. Therefore, according to Winkler, the TCCA’s decision was\ncontrary to clearly established Supreme Court precedent. Alternatively, Winkler says he can\nshow actual prejudice. The district court denied Winkler’s petition but granted him a certificate\nof appealability.\n II. STANDARD OF REVIEW\n\n After a state court has adjudicated a claim on the merits, a federal court may only issue a\nwrit of habeas corpus in two instances: (1) if the state court’s decision was “contrary to, or\n\n 1The Tennessee Rules of Appellate procedure require that a party seeking review of the admission or\nexclusion of evidence in a case tried by a jury must first make a motion for a new trial on those grounds. Tenn. R.\nApp. P. 3(e). If a party does not move for a new trial before appeal, the issue will be treated as waived, id., and can\nonly be reviewed for plain error, Tenn. R. App. P. 36(b).\n\f No. 18-5301 Winkler v. Parris Page 4\n\n\ninvolved an unreasonable application of, clearly established Federal law, as determined by the\nSupreme Court of the United States;” or (2) the “decision . . . was based on an unreasonable\ndetermination of the facts in light of the evidence presented in the State court proceeding.” 28\nU.S.C. § 2254(d)(1)–(2). For the “clearly established” route, we may only consider holdings—\nand not dicta—of the Supreme Court, Woods v. Donald, 135 S. Ct. 1372, 1376 (2015), and only\nholdings that were precedent when the state court adjudicated the issue, Greene v. Fisher, 565\nU.S. 34, 38 (2011). We review the district court’s legal habeas corpus decisions de novo and its\nfactual findings for clear error. Hand v. Houk, 871 F.3d 390, 406 (6th Cir. 2017).\n\n III. ANALYSIS\n\n The Supreme Court has held that the right to effective assistance of counsel extends to\nappeals. Smith v. Robbins, 528 U.S. 259, 276–77, 285 (2000); Evitts v. Lucey, 469 U.S. 387,\n396–405 (1985). A petitioner claiming ineffective assistance of counsel must show that\ncounsel’s performance was deficient, and that the petitioner was prejudiced as a result.\nStrickland v. Washington, 466 U.S. 668, 687 (1984). This “is never an easy task.” Padilla v.\nKentucky, 559 U.S. 356, 371 (2010). “[S]o long as fairminded jurists could disagree on the\ncorrectness of [the state court’s] decision”—even if it was ultimately incorrect—we must deny\nthe petition. Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and\ncitation omitted).\n\n Winkler and the State agree that trial counsel’s failure to file the transcript from the\nmotion for a new trial was deficient performance. See also Moore v. Carlton, 74 F.3d 689, 693\n(6th Cir. 1996) (“[I]t seems clear that failing to file a significant portion of the record on direct\nappeal constitutes deficient performance.”). Therefore, we consider only whether Winkler was\nprejudiced as a result.\n\n Presumed Prejudice. In certain cases, counsel is so ineffective that prejudice is\npresumed. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019). On appeal, “[t]he lodestar that\nguides courts to presume prejudice is whether the attorney’s actions effectively ‘deprived [the\ndefendant] of the appellate proceeding altogether.’” Carter v. Parris, 910 F.3d 835, 842 (6th\nCir. 2018) (alteration in original) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). The\n\f No. 18-5301 Winkler v. Parris Page 5\n\n\nSupreme Court has presumed prejudice on appeal only in a limited number of situations:\n(1) when a defendant is denied appellate counsel, Flores-Ortega, 528 U.S. at 483; and (2) when\nappellate counsel fails to file a notice of appeal, Garza, 139 S. Ct. at 750. The Sixth Circuit has,\nsimilarly, presumed prejudice when appellate counsel fails to file an appellate brief. See\nHardaway v. Robinson, 655 F.3d 445, 449 (6th Cir. 2011). The common theme among these\ncases is that the defendant lost the ability to appeal altogether.\n\n Winkler purports to identify an additional presumed-prejudice scenario. He asserts that\nthe Supreme Court’s decision in Entsminger v. Iowa, 386 U.S. 748 (1967), sets a bright-line rule\nthat prejudice is presumed whenever an attorney fails to file a portion of the trial court record on\nappeal. We do not read Entsminger so broadly.\n\n In Entsminger, appointed counsel, believing that an appeal would have no merit, did not\nfile the entire record. 386 U.S. at 750. Instead, he filed only the clerk’s transcript (essentially a\ndocket sheet), which did not contain a transcript of the evidence, the briefs, or the argument of\ncounsel. Id. at 749. The Iowa Supreme Court affirmed the defendant’s conviction despite\ndefendant’s request for the full record. Id. at 750. The Supreme Court reversed, stating that\n“there is no question but that [defendant] was precluded from obtaining a complete and effective\nappellate review of his conviction by the operation of the clerk’s transcript.” Id. at 752. The\nCourt then remanded the case for consideration with the full record. Id.\n\n Thus, in Entsminger, the defendant lost “all hope of any (adequate and effective) appeal”\nbecause the attorney chose not to file the entire record and the state appellate court refused to\norder it despite the defendant’s request. Id. (citation and internal quotation marks omitted).\nEnstminger predates Strickland’s deficient performance and prejudice framework, but its\nreasoning suggests that prejudice is presumed when the defendant is entirely prevented from\npresenting the trial court record to the appellate court.2 But that is not what happened here.\n\n\n 2\n Another pre-Strickland case, Hardy v. United States, 375 U.S. 277 (1964), shows what happens when\nappellate counsel cannot access the full trial transcript. There, an indigent defendant filed a pro se application for\nleave to appeal. Id. at 278. The court of appeals ordered only the parts of the transcript referenced in the\ndefendant’s conclusory allegations on appeal. Id. Pro bono counsel, appointed after defendant filed his application,\nfiled a motion with the court of appeals requesting the entire transcript. Id. The court of appeals denied the motion.\nId. The Supreme Court reversed, concluding that “counsel’s duty cannot be discharged unless he has a transcript of\n\f No. 18-5301 Winkler v. Parris Page 6\n\n\n Winkler’s counsel filed a notice of appeal. He wrote two briefs. He submitted a record\nof over 800 pages, including the trial transcripts and exhibits, and failed to submit only the\ntranscript (about six pages) from the post-trial hearing on Winkler’s motion for a new trial. The\nTCCA then reviewed his conviction for sufficiency of the evidence. Thus, Winkler was not, by a\nlong shot, “deprived . . . of the appellate proceeding altogether.” Flores-Ortega, 528 U.S. 483.\nTwo post-Strickland Sixth Circuit cases lend support to this conclusion.\n\n In Moore v. Carlton, the petitioner sought a writ of habeas corpus based on his appellate\ncounsel’s failure to file a complete trial transcript. 74 F.3d at 690. Both the TCCA and the\ndistrict court rejected petitioner’s ineffective assistance of counsel claims because he could not\nshow prejudice. Id. We affirmed. Id. at 694. Using the two-part Strickland analysis, we held:\n“[I]t seems clear that failing to file a significant portion of the record on direct appeal constitutes\ndeficient performance, when the sufficiency of the evidence is an issue.” Id. at 692–93 (citing\nEntsminger, 386 U.S. at 750–51). “However,” we continued, “the prejudice prong of this claim\nmust also be hurdled.” Id. at 693. We concluded that “ample evidence” supported petitioner’s\nconviction and that there was “not even a modicum of evidence here that the incomplete\ntranscript resulted in actual prejudice.” Id.\n\n Similarly, in Bransford v. Brown, the petitioner raised due process and ineffective\nassistance claims when his appellate counsel failed to obtain the transcripts of the jury\ninstructions. 806 F.2d 83, 84 (6th Cir. 1986). But appellate counsel did so based upon his\nconversations with trial counsel. Id. at 83–84. We held that where “[petitioner’s] trial attorney\ncommunicated with his appellate attorney, the absence of the jury instruction transcripts is not a\nper se denial of his due process rights to a fair appeal. Instead, in order to demonstrate denial of\na fair appeal, petitioner must show prejudice resulting from the missing transcripts.” Id. at 86\n(citations omitted). Likewise, applying Strickland, we held that although appellate counsel’s\nperformance was deficient due to his failure to secure the transcript of the jury instructions, there\nwas no prejudice because appellate counsel “did review the bulk of the trial proceedings and\nperfected an appeal on behalf of petitioner, which appeal was heard on the merits.” Id. at 87.\n\n\nthe testimony and evidence presented by the defendant and also the court’s charge to the jury, as well as the\ntestimony and evidence presented by the prosecution.” Id. at 282.\n\f No. 18-5301 Winkler v. Parris Page 7\n\n\nWe “recognize[d] the difficulties inherent in an attempt to prove prejudice when no record exists\nof the proceedings at issue,” but nonetheless concluded that “petitioner must present us with\nsomething more than rank speculation.” Id.\n\n In short, based on clear precedent, a presumption of prejudice arises only when the\npetitioner is effectively prevented from presenting any part of the trial court record on appeal\nbecause counsel fails to file it and the court fails to obtain it. In all other ineffective assistance\ncases regarding the trial court record on appeal, a petitioner must show actual prejudice. Here,\nWinkler’s counsel filed a significant portion of the trial court record on appeal. Therefore,\nWinkler is not entitled to presumed prejudice. Instead, he must show actual prejudice resulting\nfrom his counsel’s deficient performance.\n\n Actual Prejudice. To do that, Winkler must show that “there is a reasonable probability\nthat inclusion of the [evidentiary] issue[s] would have changed the result of the appeal.”\nMcFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). “The likelihood of a different result\nmust be substantial, not just conceivable.” Harrington, 562 U.S. at 112 (citation omitted). We\nconsider each piece of evidence in turn and “decide whether there is a reasonable probability that\nthe claim would have prevailed at the time counsel failed to raise it.” McFarland, 356 F.3d at\n699.\n\n The stale conviction. Winkler asserts that there is a reasonable probability that the TCCA\nwould have reversed the trial judge’s decision to omit any reference to John Senn’s stale felony\nconviction for reckless endangerment. We disagree. The TCCA would have reviewed the trial\njudge’s decision for an abuse of discretion. State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).\nIn Tennessee, a party may only present evidence of a witness’s prior conviction to attack the\nwitness’s credibility if that conviction was for a felony or if the crime “involved dishonesty or\nfalse statement.” Tenn. R. Evid. 609(a)(2). Although Senn’s conviction was a felony, it was\nmore than ten years old. Therefore, it was only admissible if its probative value substantially\noutweighed its prejudicial effect. Tenn. R. Evid. 609(b).\n\n Winkler asserts that the conviction was probative because, as a felon, Senn could not own\nor discharge a firearm. Thus, Senn could have been prosecuted for firing the gun, so he had to\n\f No. 18-5301 Winkler v. Parris Page 8\n\n\n“invent a reason to justify his gunplay to the police.” The trial judge determined the conviction\nhad little probative value and that Winkler’s reasoning for offering it was collateral to the\nquestion at trial—i.e., whether Winkler attempted to burn down Senn’s house. The trial judge’s\nreasoning is sound, and we do not see any substantial likelihood that the TCCA would have\ndetermined that the trial judge abused her discretion.\n\n The voicemail. Winkler also asserts that the there is a reasonable probability that the\nTCCA would have reversed the trial judge’s decision to let Sherri Turpin Senn testify that she\nheard Winkler say, “You are going to die, you are going to burn,” in a voicemail. Again, we\ndisagree.\n\n Winker first attempts to characterize the voicemail statement as inadmissible character\nevidence. See Tenn. R. Evid. 404(b). In Winkler’s view, his voicemail to Lisa Abercrombie was\na prior bad act that the State used to show that he was an arsonist, and that he was acting in\nconformity with that trait when he poured gasoline on the Senns’ house. However, the voicemail\nwas evidence that Winkler threatened direct harm against Sherri Turpin Senn. She and Lisa\nAbercrombie were sisters-in-law, their houses were only 100 yards apart, and Winkler was\nengaged in a long-running feud with her entire family. Threats of direct harm are not barred by\nRule 404(b) because they “show [the] defendant’s hostility toward the victim, malice, intent, and\na settled purpose to harm the victim.” State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see\nalso State v. Bias, No. E2007-01452-CCA-R3-CD, 2009 WL 3817291, at *15 (Tenn. Crim. App.\nNov. 16, 2009) (holding trial court properly admitted threat “if you call the law I will come back\nand kill you and burn your house”).\n\n Winkler also asserts that Sherri Turpin Senn’s testimony about the voicemail is not the\nbest evidence of the voicemail. We note, however, that the best evidence rule is one of\npreference, and the original recording is not required if it has been lost, destroyed, or is\nunobtainable. Tenn. R. Evid. 1004(1)–(2). On post-conviction review, Lisa Abercrombie (to\nwhom the voicemail was originally sent) and Andrew Freiberg (the prosecutor) testified that the\nvoicemail no longer existed at the time of Winkler’s trial. Absent the original recording, the best\nevidence rule is inapplicable.\n\f No. 18-5301 Winkler v. Parris Page 9\n\n\n IV. CONCLUSION\n\n Prejudice is presumed only in limited instances on appeal. The failure to file a small\nportion of a trial court record is not one of them. Therefore, the TCCA’s decision to deny\nWinkler’s ineffective-assistance claim was neither contrary to, nor an unreasonable application\nof, clearly-established Supreme Court precedent.\n\n We AFFIRM the district court and DENY Winkler’s petition.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Perley WINKLER, Petitioner-Appellant, v. Mike PARRIS, Warden, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Sixth Circuit\\nDate decided: 2019-06-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nRECOMMENDED FOR FULL-TEXT PUBLICATION\\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\\n File Name: 19a0130p.06\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SIXTH CIRCUIT\\n\\n\\n\\n PERLEY WINKLER, ┐\\n Petitioner-Appellant, │\\n │\\n > No. 18-5301\\n v. │\\n │\\n │\\n MIKE PARRIS, Warden, │\\n Respondent-Appellee. │\\n ┘\\n\\n Appeal from the United States District Court\\n for the Eastern District of Tennessee at Knoxville.\\n No. 3:14-cv-00509—Pamela Lynn Reeves, District Judge.\\n\\n Argued: May 8, 2019\\n\\n Decided and Filed: June 18, 2019\\n\\n Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.\\n\\n _________________\\n\\n COUNSEL\\n\\nARGUED: Jennifer L. Dollard-Smith, SQUIRE PATTON BOGGS (US) LLP, Cincinnati,\\nOhio, for Appellant. T. Austin Watkins, OFFICE OF THE ATTORNEY GENERAL, Nashville,\\nTennessee, for Appellee. ON BRIEF: Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON\\nBOGGS (US) LLP, Cincinnati, Ohio, Nathan L. Colvin, VORYS, SATER, SEYMOUR, AND\\nPEASE LLP, Cincinnati, Ohio, for Appellant. T. Austin Watkins, OFFICE OF THE\\nATTORNEY GENERAL, Nashville, Tennessee, for Appellee.\\n _________________\\n\\n OPINION\\n _________________\\n\\n SUHRHEINRICH, Circuit Judge. Perley Winkler, Jr. was convicted in Tennessee state\\ncourt of two counts of attempted first-degree murder and one count of attempted aggravated\\n\\f No. 18-5301 Winkler v. Parris Page 2\\n\\n\\narson. He now petitions for habeas relief, alleging his appellate counsel was constitutionally\\nineffective for failing to submit a small portion of his trial court record on appeal. He asserts that\\nunder Entsminger v. Iowa, 386 U.S. 748 (1967), the failure to file a portion of the record entitles\\nhim to presumed prejudice in the ineffective-assistance analysis. We reject Winkler’s argument,\\nAFFIRM the district court, and DENY the habeas petition.\\n\\n I. FACTS\\n\\n The prosecution’s case against Winkler primarily was based on the testimony of two\\nwitnesses: John Senn, and his girlfriend (now wife) Sherri Turpin Senn. John Senn testified that\\non the morning of April 17, 2007, one of his pit bull dogs woke him up. As he got up to let the\\ndog outside, he looked out the small window in his back door and saw Winkler and Michael\\nAaron Jenkins in his yard. Senn testified that Jenkins was holding a gasoline jug, but that he\\ndropped it and ran into the woods with Winkler. Senn testified that he woke up Sherri and told\\nher to call the police. Senn testified that, in the meantime, he grabbed his gun, walked onto the\\nback porch, and fired eight shots into the woods. As he walked outside, Senn smelled gasoline\\nand saw that it had been poured in his jacuzzi, on his back porch, on the side of his house, and on\\nboth of his cars.\\n\\n Sherri Turpin Senn corroborated most of John Senn’s story. She also testified that her\\nbrother, Steve Abercrombie, had been in a long-running feud with Winkler, and that Mr.\\nAbercrombie lived approximately 100 yards from her house. She testified that, one week before\\nthe incident, her sister-in-law, Lisa Abercrombie, played for her a voicemail message that\\nWinkler had left on Mrs. Abercrombie’s cellular telephone. According to Sherri Turpin Senn,\\nWinkler said, “You are going to die, you are going to burn.” She explained that she grew up\\nwith Winkler and had heard his voice “thousands” of times, so she recognized it on the\\nvoicemail.\\n\\n Relevant to this appeal, Winkler raised two evidentiary objections during trial. First,\\nWinkler wanted to impeach John Senn with his previous felony conviction for reckless\\nendangerment. The trial judge kept the conviction out, finding that it was more than ten years\\nold and had little probative value. Second, Winkler objected to Sherri Turpin Senn’s testimony\\n\\f No. 18-5301 Winkler v. Parris Page 3\\n\\n\\nabout the voicemail as inadmissible character evidence. The trial judge overruled Winkler’s\\nobjection (and a best-evidence objection from co-defendant’s counsel) and allowed Sherri Turpin\\nSenn to testify about what she heard on the voicemail.\\n\\n The jury convicted Winkler of two counts of attempted first-degree murder and one count\\nof attempted aggravated arson. After an unsuccessful motion for a new trial on the evidentiary\\nissues, Winkler appealed. His counsel filed nearly the entire trial court record—except for the\\ntranscript of his motion for a new trial. Without it, the Tennessee Court of Criminal Appeals\\n(TCCA) reviewed the evidentiary issues for plain error, found none, and affirmed Winkler’s\\nconviction.1 State v. Michael Aaron Jenkins and Perley Winkler, Jr., No. E2008–02321–CCA–\\nR3–CD, 2011 WL 578593, at *6 (Tenn. Crim. App., Feb. 17, 2011), appeal denied (Tenn. May\\n25, 2011).\\n\\n The TCCA also denied Winkler’s petition for post-conviction relief, stating “[t]he fact\\nthat trial counsel failed to prepare an adequate appellate record does not, standing alone, amount\\nto ineffective assistance of counsel.” Winkler v. State, No. E2012-02647-CCA-R3PC, 2014 WL\\n545479, at *9 (Tenn. Crim. App. Feb. 10, 2014), appeal denied (Tenn. July 16, 2014). Instead,\\nthe TCCA concluded that Winkler must show what was left out of the record, and how he was\\nprejudiced by the omission. Id.\\n\\n Winkler now petitions for habeas relief, arguing that he was not required to prove actual\\nprejudice under Entsminger. Therefore, according to Winkler, the TCCA’s decision was\\ncontrary to clearly established Supreme Court precedent. Alternatively, Winkler says he can\\nshow actual prejudice. The district court denied Winkler’s petition but granted him a certificate\\nof appealability.\\n II. STANDARD OF REVIEW\\n\\n After a state court has adjudicated a claim on the merits, a federal court may only issue a\\nwrit of habeas corpus in two instances: (1) if the state court’s decision was “contrary to, or\\n\\n 1The Tennessee Rules of Appellate procedure require that a party seeking review of the admission or\\nexclusion of evidence in a case tried by a jury must first make a motion for a new trial on those grounds. Tenn. R.\\nApp. P. 3(e). If a party does not move for a new trial before appeal, the issue will be treated as waived, id., and can\\nonly be reviewed for plain error, Tenn. R. App. P. 36(b).\\n\\f No. 18-5301 Winkler v. Parris Page 4\\n\\n\\ninvolved an unreasonable application of, clearly established Federal law, as determined by the\\nSupreme Court of the United States;” or (2) the “decision . . . was based on an unreasonable\\ndetermination of the facts in light of the evidence presented in the State court proceeding.” 28\\nU.S.C. § 2254(d)(1)–(2). For the “clearly established” route, we may only consider holdings—\\nand not dicta—of the Supreme Court, Woods v. Donald, 135 S. Ct. 1372, 1376 (2015), and only\\nholdings that were precedent when the state court adjudicated the issue, Greene v. Fisher, 565\\nU.S. 34, 38 (2011). We review the district court’s legal habeas corpus decisions de novo and its\\nfactual findings for clear error. Hand v. Houk, 871 F.3d 390, 406 (6th Cir. 2017).\\n\\n III. ANALYSIS\\n\\n The Supreme Court has held that the right to effective assistance of counsel extends to\\nappeals. Smith v. Robbins, 528 U.S. 259, 276–77, 285 (2000); Evitts v. Lucey, 469 U.S. 387,\\n396–405 (1985). A petitioner claiming ineffective assistance of counsel must show that\\ncounsel’s performance was deficient, and that the petitioner was prejudiced as a result.\\nStrickland v. Washington, 466 U.S. 668, 687 (1984). This “is never an easy task.” Padilla v.\\nKentucky, 559 U.S. 356, 371 (2010). “[S]o long as fairminded jurists could disagree on the\\ncorrectness of [the state court’s] decision”—even if it was ultimately incorrect—we must deny\\nthe petition. Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and\\ncitation omitted).\\n\\n Winkler and the State agree that trial counsel’s failure to file the transcript from the\\nmotion for a new trial was deficient performance. See also Moore v. Carlton, 74 F.3d 689, 693\\n(6th Cir. 1996) (“[I]t seems clear that failing to file a significant portion of the record on direct\\nappeal constitutes deficient performance.”). Therefore, we consider only whether Winkler was\\nprejudiced as a result.\\n\\n Presumed Prejudice. In certain cases, counsel is so ineffective that prejudice is\\npresumed. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019). On appeal, “[t]he lodestar that\\nguides courts to presume prejudice is whether the attorney’s actions effectively ‘deprived [the\\ndefendant] of the appellate proceeding altogether.’” Carter v. Parris, 910 F.3d 835, 842 (6th\\nCir. 2018) (alteration in original) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). The\\n\\f No. 18-5301 Winkler v. Parris Page 5\\n\\n\\nSupreme Court has presumed prejudice on appeal only in a limited number of situations:\\n(1) when a defendant is denied appellate counsel, Flores-Ortega, 528 U.S. at 483; and (2) when\\nappellate counsel fails to file a notice of appeal, Garza, 139 S. Ct. at 750. The Sixth Circuit has,\\nsimilarly, presumed prejudice when appellate counsel fails to file an appellate brief. See\\nHardaway v. Robinson, 655 F.3d 445, 449 (6th Cir. 2011). The common theme among these\\ncases is that the defendant lost the ability to appeal altogether.\\n\\n Winkler purports to identify an additional presumed-prejudice scenario. He asserts that\\nthe Supreme Court’s decision in Entsminger v. Iowa, 386 U.S. 748 (1967), sets a bright-line rule\\nthat prejudice is presumed whenever an attorney fails to file a portion of the trial court record on\\nappeal. We do not read Entsminger so broadly.\\n\\n In Entsminger, appointed counsel, believing that an appeal would have no merit, did not\\nfile the entire record. 386 U.S. at 750. Instead, he filed only the clerk’s transcript (essentially a\\ndocket sheet), which did not contain a transcript of the evidence, the briefs, or the argument of\\ncounsel. Id. at 749. The Iowa Supreme Court affirmed the defendant’s conviction despite\\ndefendant’s request for the full record. Id. at 750. The Supreme Court reversed, stating that\\n“there is no question but that [defendant] was precluded from obtaining a complete and effective\\nappellate review of his conviction by the operation of the clerk’s transcript.” Id. at 752. The\\nCourt then remanded the case for consideration with the full record. Id.\\n\\n Thus, in Entsminger, the defendant lost “all hope of any (adequate and effective) appeal”\\nbecause the attorney chose not to file the entire record and the state appellate court refused to\\norder it despite the defendant’s request. Id. (citation and internal quotation marks omitted).\\nEnstminger predates Strickland’s deficient performance and prejudice framework, but its\\nreasoning suggests that prejudice is presumed when the defendant is entirely prevented from\\npresenting the trial court record to the appellate court.2 But that is not what happened here.\\n\\n\\n 2\\n Another pre-Strickland case, Hardy v. United States, 375 U.S. 277 (1964), shows what happens when\\nappellate counsel cannot access the full trial transcript. There, an indigent defendant filed a pro se application for\\nleave to appeal. Id. at 278. The court of appeals ordered only the parts of the transcript referenced in the\\ndefendant’s conclusory allegations on appeal. Id. Pro bono counsel, appointed after defendant filed his application,\\nfiled a motion with the court of appeals requesting the entire transcript. Id. The court of appeals denied the motion.\\nId. The Supreme Court reversed, concluding that “counsel’s duty cannot be discharged unless he has a transcript of\\n\\f No. 18-5301 Winkler v. Parris Page 6\\n\\n\\n Winkler’s counsel filed a notice of appeal. He wrote two briefs. He submitted a record\\nof over 800 pages, including the trial transcripts and exhibits, and failed to submit only the\\ntranscript (about six pages) from the post-trial hearing on Winkler’s motion for a new trial. The\\nTCCA then reviewed his conviction for sufficiency of the evidence. Thus, Winkler was not, by a\\nlong shot, “deprived . . . of the appellate proceeding altogether.” Flores-Ortega, 528 U.S. 483.\\nTwo post-Strickland Sixth Circuit cases lend support to this conclusion.\\n\\n In Moore v. Carlton, the petitioner sought a writ of habeas corpus based on his appellate\\ncounsel’s failure to file a complete trial transcript. 74 F.3d at 690. Both the TCCA and the\\ndistrict court rejected petitioner’s ineffective assistance of counsel claims because he could not\\nshow prejudice. Id. We affirmed. Id. at 694. Using the two-part Strickland analysis, we held:\\n“[I]t seems clear that failing to file a significant portion of the record on direct appeal constitutes\\ndeficient performance, when the sufficiency of the evidence is an issue.” Id. at 692–93 (citing\\nEntsminger, 386 U.S. at 750–51). “However,” we continued, “the prejudice prong of this claim\\nmust also be hurdled.” Id. at 693. We concluded that “ample evidence” supported petitioner’s\\nconviction and that there was “not even a modicum of evidence here that the incomplete\\ntranscript resulted in actual prejudice.” Id.\\n\\n Similarly, in Bransford v. Brown, the petitioner raised due process and ineffective\\nassistance claims when his appellate counsel failed to obtain the transcripts of the jury\\ninstructions. 806 F.2d 83, 84 (6th Cir. 1986). But appellate counsel did so based upon his\\nconversations with trial counsel. Id. at 83–84. We held that where “[petitioner’s] trial attorney\\ncommunicated with his appellate attorney, the absence of the jury instruction transcripts is not a\\nper se denial of his due process rights to a fair appeal. Instead, in order to demonstrate denial of\\na fair appeal, petitioner must show prejudice resulting from the missing transcripts.” Id. at 86\\n(citations omitted). Likewise, applying Strickland, we held that although appellate counsel’s\\nperformance was deficient due to his failure to secure the transcript of the jury instructions, there\\nwas no prejudice because appellate counsel “did review the bulk of the trial proceedings and\\nperfected an appeal on behalf of petitioner, which appeal was heard on the merits.” Id. at 87.\\n\\n\\nthe testimony and evidence presented by the defendant and also the court’s charge to the jury, as well as the\\ntestimony and evidence presented by the prosecution.” Id. at 282.\\n\\f No. 18-5301 Winkler v. Parris Page 7\\n\\n\\nWe “recognize[d] the difficulties inherent in an attempt to prove prejudice when no record exists\\nof the proceedings at issue,” but nonetheless concluded that “petitioner must present us with\\nsomething more than rank speculation.” Id.\\n\\n In short, based on clear precedent, a presumption of prejudice arises only when the\\npetitioner is effectively prevented from presenting any part of the trial court record on appeal\\nbecause counsel fails to file it and the court fails to obtain it. In all other ineffective assistance\\ncases regarding the trial court record on appeal, a petitioner must show actual prejudice. Here,\\nWinkler’s counsel filed a significant portion of the trial court record on appeal. Therefore,\\nWinkler is not entitled to presumed prejudice. Instead, he must show actual prejudice resulting\\nfrom his counsel’s deficient performance.\\n\\n Actual Prejudice. To do that, Winkler must show that “there is a reasonable probability\\nthat inclusion of the [evidentiary] issue[s] would have changed the result of the appeal.”\\nMcFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). “The likelihood of a different result\\nmust be substantial, not just conceivable.” Harrington, 562 U.S. at 112 (citation omitted). We\\nconsider each piece of evidence in turn and “decide whether there is a reasonable probability that\\nthe claim would have prevailed at the time counsel failed to raise it.” McFarland, 356 F.3d at\\n699.\\n\\n The stale conviction. Winkler asserts that there is a reasonable probability that the TCCA\\nwould have reversed the trial judge’s decision to omit any reference to John Senn’s stale felony\\nconviction for reckless endangerment. We disagree. The TCCA would have reviewed the trial\\njudge’s decision for an abuse of discretion. State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).\\nIn Tennessee, a party may only present evidence of a witness’s prior conviction to attack the\\nwitness’s credibility if that conviction was for a felony or if the crime “involved dishonesty or\\nfalse statement.” Tenn. R. Evid. 609(a)(2). Although Senn’s conviction was a felony, it was\\nmore than ten years old. Therefore, it was only admissible if its probative value substantially\\noutweighed its prejudicial effect. Tenn. R. Evid. 609(b).\\n\\n Winkler asserts that the conviction was probative because, as a felon, Senn could not own\\nor discharge a firearm. Thus, Senn could have been prosecuted for firing the gun, so he had to\\n\\f No. 18-5301 Winkler v. Parris Page 8\\n\\n\\n“invent a reason to justify his gunplay to the police.” The trial judge determined the conviction\\nhad little probative value and that Winkler’s reasoning for offering it was collateral to the\\nquestion at trial—i.e., whether Winkler attempted to burn down Senn’s house. The trial judge’s\\nreasoning is sound, and we do not see any substantial likelihood that the TCCA would have\\ndetermined that the trial judge abused her discretion.\\n\\n The voicemail. Winkler also asserts that the there is a reasonable probability that the\\nTCCA would have reversed the trial judge’s decision to let Sherri Turpin Senn testify that she\\nheard Winkler say, “You are going to die, you are going to burn,” in a voicemail. Again, we\\ndisagree.\\n\\n Winker first attempts to characterize the voicemail statement as inadmissible character\\nevidence. See Tenn. R. Evid. 404(b). In Winkler’s view, his voicemail to Lisa Abercrombie was\\na prior bad act that the State used to show that he was an arsonist, and that he was acting in\\nconformity with that trait when he poured gasoline on the Senns’ house. However, the voicemail\\nwas evidence that Winkler threatened direct harm against Sherri Turpin Senn. She and Lisa\\nAbercrombie were sisters-in-law, their houses were only 100 yards apart, and Winkler was\\nengaged in a long-running feud with her entire family. Threats of direct harm are not barred by\\nRule 404(b) because they “show [the] defendant’s hostility toward the victim, malice, intent, and\\na settled purpose to harm the victim.” State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see\\nalso State v. Bias, No. E2007-01452-CCA-R3-CD, 2009 WL 3817291, at *15 (Tenn. Crim. App.\\nNov. 16, 2009) (holding trial court properly admitted threat “if you call the law I will come back\\nand kill you and burn your house”).\\n\\n Winkler also asserts that Sherri Turpin Senn’s testimony about the voicemail is not the\\nbest evidence of the voicemail. We note, however, that the best evidence rule is one of\\npreference, and the original recording is not required if it has been lost, destroyed, or is\\nunobtainable. Tenn. R. Evid. 1004(1)–(2). On post-conviction review, Lisa Abercrombie (to\\nwhom the voicemail was originally sent) and Andrew Freiberg (the prosecutor) testified that the\\nvoicemail no longer existed at the time of Winkler’s trial. Absent the original recording, the best\\nevidence rule is inapplicable.\\n\\f No. 18-5301 Winkler v. Parris Page 9\\n\\n\\n IV. CONCLUSION\\n\\n Prejudice is presumed only in limited instances on appeal. The failure to file a small\\nportion of a trial court record is not one of them. Therefore, the TCCA’s decision to deny\\nWinkler’s ineffective-assistance claim was neither contrary to, nor an unreasonable application\\nof, clearly-established Supreme Court precedent.\\n\\n We AFFIRM the district court and DENY Winkler’s petition.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":24,"numItemsPerPage":100,"numTotalItems":31175,"offset":2400,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3ODgyMTEzOCwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3Nzg4MjQ3MzgsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.AhvT80DcSLSnEfqVDhfsyvrZnhN_t4JYIWGU0fbKOhzNimiZY1AgeWPfyg6T4ObwT43dw05WRiYLddXxlebyDw","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,632,946 | Laurel ZUCKERMAN, as Ancillary Administratrix of the Estate of Alice Leffmann, Plaintiff-Appellant, v. the METROPOLITAN MUSEUM OF ART, Defendant-Appellee. | Zuckerman v. The Metropolitan Museum of Art | 2019-06-26 | 18-634-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Livingston, Droney", "parties": "", "opinions": [{"author": "KATZMANN, Chief Judge", "type": "010combined", "text": "18‐634‐cv\nZuckerman v. The Metropolitan Museum of Art\n\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n ... | KATZMANN | LIVINGSTON | DRONEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632946/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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4,633,428 | Evan GEFFNER and Ivan Babsin, on Behalf of Themselves, All Others Similarly Situated, and the General Public, Plaintiffs-Appellants, v. the COCA-COLA COMPANY, Defendant-Appellee. | Geffner v. The Coca-Cola Company | 2019-06-27 | 18-3548-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Raggi, Droney", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "18‐3548‐cv\nGeffner v. The Coca‐Cola Company\n\n\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n... | CABRANES | RAGGI | DRONEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633428/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,079 | Helen M. WHITEHURST, Plaintiff-Appellant, v. 1199SEIU UNITED HEALTHCARE WORKERS EAST, Melissa Hamm, Staten Island University Hospital, North Shore Long Island Jewish Health System, George Gresham, President of the Service Employees International Union, Defendants-Appellees. | Whitehurst v. 1199seiu United Healthcare Workers E. | 2019-06-28 | Docket 18-2451-cv; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Sack, Hall, Droney", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "18-2451-cv\nWhitehurst v. United Healthcare Workers East\n\n In the\n United States Court of Appeals\n ... | SACK | HALL | DRONEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635079/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,900 | David JAROSLAWICZ v. M&T BANK CORPORATION; Hudson City Bancorp Inc.; *The Estate of Robert G. Wilmers, by Its Personal Representatives Elisabeth Roche Wilmers, Peter Milliken, and Holly McAllister Swett; Rene F. Jones; Mark J. Czarnecki; Brent D. Baird ; Angela C. Bontempo; Robert T. Brady; T. Jefferson Cunningham, III... | Jaroslawicz v. M&T Bank Corp. | 2019-06-04 | 17-3695 | U.S. Court of Appeals for the Third Circuit | {"judges": "Present: McKEE and SILER, JR., Circuit Judges* * The Honorable Eugene E. Siler, Jr., Senior Judge for the Sixth Circuit Court of Appeals, sat by designation.", "parties": "", "opinions": [{"author": "The Honorable Eugene E. Siler, Jr., Senior Judge for the Sixth Circuit Court of Appeals", "type": "010combin... | MCKEE | SILER JR | EUGENE E SILER JR | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625900/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,108 | Darien HOUSER, Appellant v. Superintendent Louis S. FOLINO; Dr. Jin, MD.; PA Diggs; Lucas-Antonich | Darien Houser v. Louis Folino | 2019-06-19 | 16-2242 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Chagares, Greenaway", "parties": "", "opinions": [{"author": "CHAGARES, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 16-2242\n ... | AMBRO | CHAGARES | GREENAWAY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631108/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,109 | Christopher BLAKE; James Orkis, Individually and on Behalf of All Others Similarly Situated, Appellants v. JP MORGAN CHASE BANK NA; Chase Bank USA NA; JP Morgan Chase & Co; Cross Country Insurance Company | Christopher Blake v. JP Morgan Chase Bank NA | 2019-06-19 | 18-2368 | U.S. Court of Appeals for the Third Circuit | {"judges": "Shwartz, Krause, Bibas", "parties": "", "opinions": [{"author": "BIBAS, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 18-2368\n _________... | SHWARTZ | KRAUSE | BIBAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631109/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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4,631,435 | Peter Fan v. Stonemor Partners LP | 2019-06-20 | 17-3843 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges.", "parties": "", "opinions": [{"author": "RESTREPO, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n _____________\n\n ... | SMITH | MCKEE | RESTREPO | 1 | {"SMITH": ", Chief", "McKEE": ", Circuit", "RESTREPO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631435/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
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4,631,459 | Bradley Beers v. Attorney General United States | 2019-06-20 | 17-3010 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: SHWARTZ, ROTH and RENDELL, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "ROTH, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n ________________\n\n ... | SHWARTZ | ROTH | RENDELL | 1 | {"SHWARTZ": ", Circuit", "ROTH": ", Circuit", "RENDELL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631459/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,631,507 | United States v. Arturo Meireles-Candel | 2019-06-20 | 18-1120 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: SMITH, Chief Judge, and CHAGARES and BIBAS, Circuit Judges (", "parties": "", "opinions": [{"author": "BIBAS, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ___________... | SMITH | CHAGARES | BIBAS | 1 | {"SMITH": ", Chief", "CHAGARES": ", Circuit", "BIBAS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631507/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,015 | Bradley BEERS Joseph Divita v. ATTORNEY GENERAL UNITED STATES of America Department of Justice United States Bureau of Alcohol Tobacco Firearms & Explosives Thomas E. Brandon, Deputy Director of the ATF Ronald B. Turk, Associates Deputy Director/Chief Operating Office of the ATF Federal Bureau of Investigation Director... | Beers v. Attorney Gen. United States | 2019-06-20 | No. 17-3010 | U.S. Court of Appeals for the Third Circuit | {"judges": "Introduction, Rendell, Roth, Shwartz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415451/", "author_raw": ""}]} | RENDELL | ROTH | SHWARTZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444015/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,018 | Peter FAN Royal Estate Management LLC Fremont Hotel Inc., Individually and on behalf of all others similarly situated v. STONEMOR PARTNERS LP StoneMor GP LLC StoneMor GP Holdings LLC American Cemeteries Infrastructure Investors LLC Lawrence Miller Sean P. McGrath Robert B. Hellman, Jr. William R. Shane Timothy Yost | Fan v. StoneMor Partners LP | 2019-06-20 | No. 17-3843 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Restrepo, Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415454/", "author_raw": ""}]} | MCKEE | RESTREPO | SMITH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444018/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,019 | United States v. A.M. | United States v. A.M. | 2019-06-20 | No. 18-1120 | U.S. Court of Appeals for the Third Circuit | {"judges": "Bibas, Chagares, Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415455/", "author_raw": ""}]} | BIBAS | CHAGARES | SMITH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444019/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,961 | HERAEUS MEDICAL GMBH, Appellant v. ESSCHEM, INC. | Heraeus Medical GMBH v. Esschem Inc | 2019-06-21 | 18-1368 | U.S. Court of Appeals for the Third Circuit | {"judges": "Krause, Cowen, Fuentes", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 18-1368\n _______... | KRAUSE | COWEN | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631961/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,655 | UNITED STATES of America v. Tyrone GREENE, Appellant | United States v. Tyrone Greene | 2019-06-25 | 18-2923 | U.S. Court of Appeals for the Third Circuit | {"judges": "Hardiman, Porter, Cowen", "parties": "", "opinions": [{"author": "HARDIMAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ___________\n\n No. 18-2923\n ... | HARDIMAN | PORTER | COWEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632655/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,656 | In Re: S.S. BODY ARMOR I., INC., F/K/A Point Blank Solutions Inc. F/K/A DHB Industries, Inc., Et Al., Debtors v. CARTER LEDYARD & MILBURN LLP, Appellant | S.S. Body Armor I., Inc. v. Carter Ledyard & Milburn LLP | 2019-06-25 | 18-2558 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Greenaway, Scirica", "parties": "", "opinions": [{"author": "GREENAWAY, JR., Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-2558\n _... | AMBRO | GREENAWAY | SCIRICA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632656/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,657 | Mike BALOGA, Appellant v. PITTSTON AREA SCHOOL DISTRICT; Jim Serino | Mike Baloga v. Pittston Area School District | 2019-06-25 | 18-1344 | U.S. Court of Appeals for the Third Circuit | {"judges": "Krause, Cowen, Fuentes", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 18-1344\n ________... | KRAUSE | COWEN | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632657/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,633,651 | UNITED STATES of America v. Kenneth JAMES, Appellant | United States v. Kenneth James | 2019-06-27 | 18-2569 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith, Jordan, Rendell", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-2569\n _____________\n\n ... | SMITH | JORDAN | RENDELL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633651/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,969 | Kenneth MUHAMMAD, Plaintiff - Appellant, v. NORFOLK SOUTHERN RAILWAY CO., F/K/A Norfolk & Western Railway Co., Defendant - Appellee. | Kenneth Muhammad v. Norfolk Southern Railway Co. | 2019-06-04 | 18-1695 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Keenan, Quattlebaum", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1695\n\n\nKENN... | NIEMEYER | KEENAN | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625969/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,362 | UNITED STATES of America, Plaintiff - Appellee, v. Alvin Andrae DRUMMOND, Defendant - Appellant. | United States v. Alvin Drummond | 2019-06-05 | 18-4197 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Floyd, Traxler", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888656/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/res... | AGEE | FLOYD | TRAXLER | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626362/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,920 | Sharyl Attkisson v. Eric Holder, Jr. | 2019-06-10 | 18-1677 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before MOTZ, KING, and WYNN, Circuit Judges.", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "ON REHEARING\n\n PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\... | MOTZ | KING | WYNN | 1 | {"MOTZ": ", Circuit", "KING": ", Circuit", "WYNN": ", Circuit"} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627920/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,627,921 | L-3 COMMUNICATIONS CORPORATION; L-3 Applied Technologies, Inc., Plaintiffs - Appellants, v. SERCO, INC., Defendant - Appellee. | L-3 Communications Corporation v. Serco, Inc. | 2019-06-10 | 18-1423 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Keenan, Diaz, Duncan", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1423\n\n\n... | KEENAN | DIAZ | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627921/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,327 | UNITED STATES of America, Plaintiff-Appellee, v. Kevin BATTLE, Defendant-Appellant. | United States v. Kevin Battle | 2019-06-11 | 18-6754 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Quattlebaum, Shedd", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6754\n\n\... | NIEMEYER | QUATTLEBAUM | SHEDD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628327/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,331 | Michael PENSE, Plaintiff - Appellee, v. MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, Defendant - Appellant. | Pense v. Md. Dep't of Pub. Safety & Corr. Servs. | 2019-06-11 | 18-1554 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, King, Wynn", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1554\n\n\nMICHAEL PENSE,\n\n... | MOTZ | KING | WYNN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628331/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,741 | XIA BI; Nian Chen; Yuanyuan Chen; Ying Cheng; Jun Huang; Kui Le; Chungsheng Li; Zhonghui Li; Lin Lin; Lan Liu; Meiming Shen; Yunping Tan; Bixiang Tang; Chun Wang; Rui Wang; Yahong Wang; Yue Wang ; Jian Wu ; Lei Yan; Junping Yao; Jin You; Zhen Yu; Houqian Yu; Nianqing Zhang; Xuemei Zang; Huibin Zhao; Yan Zhao, Plaintiff... | Xia Bi v. Terry McAuliffe | 2019-06-12 | 18-2194 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Niemeyer, Duncan", "parties": "", "opinions": [{"author": "WILKINSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2194\n\n\nX... | WILKINSON | NIEMEYER | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628741/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,747 | Michael A. SMALL, Administrator of the Estate of Bertha Autry Small, Deceased, Plaintiff - Appellant, v. WELLDYNE, INC., a Florida Corporation; WellDyneRX, Inc., a Florida Corporation; Exactus Pharmacy Solutions, Inc., a Delaware Corporation; Does 1 Through 5, Inclusive, Defendants - Appellees. | Michael Small v. Welldyne, Inc. | 2019-06-12 | 18-1638 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Harris, Quattlebaum", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1638... | WILKINSON | HARRIS | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628747/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,348 | UNITED STATES of America, Plaintiff - Appellant, v. James William HILL, III, Defendant - Appellee. Matthew Shepard Foundation; Freestate Justice, Inc.; Lambda Legal Defense and Education Fund, Incorporated; The Anti-Defamation League; Trevor Project ; Public Justice Center; Japanese American Citizens League, Amici Supp... | United States v. James Hill, III | 2019-06-13 | 18-4660 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Agee, Wynn", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888714/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/... | MOTZ | AGEE | WYNN | 1 | {} | 7 | 0 | 5 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629348/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,349 | NORTHROP GRUMMAN SYSTEMS CORP., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent, v. Crisell Seguin, Intervenor. Northrop Grumman Systems Corp., Petitioner, v. United States Department of Labor, Administrative Review Board, Respondent, v. Crisell Seguin, Intervenor. | Northrop Grumman Systems Corp. v. US Department of Labor | 2019-06-13 | 17-1811; 17-2204 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Keenan, Quattlebaum", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-1811\n\n\nNORT... | AGEE | KEENAN | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629349/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,789 | Sindy Marilu ALVAREZ LAGOS; K.D.A.A., Petitioners, v. William P. BARR, Attorney General, Respondent. | Sindy Alvarez Lagos v. William Barr | 2019-06-14 | 17-2291 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Diaz, Harris", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2291\n\n\nSINDY... | GREGORY | DIAZ | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629789/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,585 | UNITED STATES of America, Petitioner - Appellant, v. Oliver Lee WHITE, Respondent - Appellee. | United States v. Oliver White | 2019-06-18 | 19-6181 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Diaz, Richardson", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-6181\n\n\nU... | NIEMEYER | DIAZ | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630585/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,596 | Herman HARRIS, Plaintiff - Appellant, v. Zachary PITTMAN, Fayetteville Police Department, Defendant - Appellee, and Moose Butler, Defendant. | Herman Harris v. Zachary Pittman | 2019-06-18 | 17-7308 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Wynn, Harris", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888765/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/op... | WILKINSON | WYNN | HARRIS | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630596/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,016 | Broderick William SEAY, Jr., Petitioner-Appellant, v. Sheriff Al CANNON, Respondent-Appellee. | Broderick Seay, Jr. v. Al Cannon | 2019-06-21 | 18-7242 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Keenan, Quattlebaum", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888783/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest... | NIEMEYER | KEENAN | QUATTLEBAUM | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632016/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,366 | UNITED STATES of America, Plaintiff - Appellee, v. Sergio Carrillo MURILLO, Defendant - Appellant. | United States v. Sergio Murillo | 2019-06-24 | 18-6844 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, King, Thacker", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888791/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinio... | MOTZ | KING | THACKER | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632366/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,368 | UNITED STATES of America, Plaintiff - Appellee, v. Leonard Charles BERNARD, Defendant - Appellant. | United States v. Leonard Bernard | 2019-06-24 | 17-4701 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Niemeyer, Motz", "parties": "", "opinions": [{"author": "Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | NIEMEYER | MOTZ | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632368/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,743 | UNITED STATES of America Plaintiff - Appellee v. Lamont Marloe VANDERHORST Defendant - Appellant | United States v. Lamont Vanderhorst | 2019-06-25 | 18-6225 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wynn, Diaz, Thacker", "parties": "", "opinions": [{"author": "WYNN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6225\n\n\nUNITED STATES OF... | WYNN | DIAZ | THACKER | 1 | {} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632743/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,633,715 | UNITED STATES of America, Plaintiff - Appellee, v. Bryshun Genard FURLOW, Defendant - Appellant. | United States v. Bryshun Furlow | 2019-06-27 | 18-4531 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, King, Duncan", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4531\n\n\n\nUNITED STATE... | WILKINSON | KING | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633715/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,240 | DOMINION ENERGY, INC.; Sedona Corp., Petitioners, v. CITY OF WARREN POLICE AND FIRE RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, Respondent. Dominion Energy, Inc.; Sedona Corp., Petitioners, v. Metzler Asset Management GMBH, on Behalf of Themselves and All Others Similarly Situated, R... | Dominion Energy, Inc. v. City of Warren Police & Fire Ret. Sys. Ex Rel. Situated | 2019-06-28 | 18-276; 18-310; 18-1844; 18-2066 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, King, Thacker", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-276\n\n\nDOMINION ENERGY, INC.; SEDONA C... | MOTZ | KING | THACKER | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635240/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,083 | In RE: Charles D. RABY, Movant. | Charles Raby | 2019-06-04 | 18-20826 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Duncan", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-20826 Document: 00514983385 Page: 1 Date Filed: 06/04/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | HIGGINBOTHAM | SMITH | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626083/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,084 | Ali EKHLASSI, Plaintiff - Appellant v. NATIONAL LLOYDS INSURANCE COMPANY, Defendant - Appellee | Ali Ekhlassi v. National Lloyds Insurance Co. | 2019-06-04 | 18-20228 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Barksdale, Southwick, Haynes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888651/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/r... | BARKSDALE | SOUTHWICK | HAYNES | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626084/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,582 | German Hernandez NAJERA, Plaintiff-Appellant v. UNITED STATES of America, Defendant-Appellee | German Najera v. United States | 2019-06-05 | 17-41212 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "James, Smith, Barksdale", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 17-41212 Document: 00514984485 Page: 1 Date Filed: 06/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCU... | JAMES | SMITH | BARKSDALE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626582/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,081 | Ricky LANGLEY, Petitioner-Appellant, v. Howard PRINCE, Warden, Elayn Hunt Correctional Center, Respondent-Appellee. | Ricky Langley v. Howard Prince, Warden | 2019-06-06 | 16-30486 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, Jones, Smith, Wiener, Dennis, Owen, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham", "parties": "", "opinions": [{"author": "ANDREW S. OLDHAM, Circuit Judge, joined by JONES, SMITH, OWEN", "type": "010combined", "text": "Case: 16-30486 Document: 0051498588... | STEWART | JONES | SMITH | 2 | WIENER; DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; DUNCAN; ENGELHARDT; OLDHAM | {} | 4 | 0 | 2 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627081/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
4,627,082 | McDonnel Group, L.L.C. v. Certain Underwriters at | 2019-06-06 | 18-30817 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, JONES, and DENNIS, Circuit Judges.", "parties": "", "opinions": [{"author": "E. GRADY JOLLY, Circuit Judge:", "type": "010combined", "text": "Case: 18-30817 Document: 00514986059 Page: 1 Date Filed: 06/06/2019\n\n\n\n\n REVISED JUNE 6, 2019\n\n IN TH... | JOLLY | JONES | DENNIS | 1 | {"JOLLY": ", Circuit", "JONES": ", Circuit", "DENNIS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627082/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,627,083 | Law Funder, L.L.C. v. Sergio Munoz, Jr. | 2019-06-06 | 18-40320 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, SMITH, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-40320 Document: 00514986560 Page: 1 Date Filed: 06/06/2019\n\n\n\n\n REVISED JUNE 6, 2019\n\n IN THE UNITED STATES COURT O... | KING | SMITH | WILLETT | 1 | {"KING": ", Circuit", "SMITH": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627083/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,627,084 | David Masel v. Adriana Villarreal | 2019-06-06 | 18-40499 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, SMITH, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "Case: 18-40499 Document: 00514986537 Page: 1 Date Filed: 06/06/2019\n\n\n\n\n REVISED JUNE 6, 2019\n\n IN THE UNITED STATES ... | KING | SMITH | WILLETT | 1 | {"KING": ", Circuit", "SMITH": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627084/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,627,581 | Lakesha BUTLER, Plaintiff - Appellee v. COAST ELECTRIC POWER ASSOCIATION, Defendant - Appellant William Willis, III, Plaintiff - Appellee v. Dixie Electric Power Association, Defendant - Appellant Kimberly Harper, Plaintiff - Appellee v. Southern Pine Electric Cooperative, Defendant - Appellant | William Willis, III v. Dixie Electric Power Assn | 2019-06-07 | 18-60365; C/w 18-60372, Consolidated with 18-60383 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-60365 Document: 00514987400 Page: 1 Date Filed: 06/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | ELROD | HO | 1 | {"HIGGINBOTHAM": ", Circuit", "ELROD": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627581/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,589 | Dolores Margarita GONZALEZ, Plaintiff - Appellant v. Norma A. LIMON, Harlingen Field Office Director, Citizenship and Immigration; United States of America, Defendants - Appellees | Dolores Gonzalez v. Norma Limon | 2019-06-07 | 17-40944 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Graves", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 17-40944 Document: 00514987059 Page: 1 Date Filed: 06/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFT... | HIGGINBOTHAM | SMITH | GRAVES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627589/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,628 | W.M.V.C. ; A.P v. Petitioners, v. William P. BARR, U.S. Attorney General, Respondent. | W. M. v. C. v. William Barr, U.S. Atty Gen | 2019-06-07 | 17-60753 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, King", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888679/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/98886... | SMITH | KING | SMITH | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627628/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,631 | UNITED STATES of America, Plaintiff - Appellee v. Felipe VINAGRE-HERNANDEZ, Defendant - Appellant | United States v. Felipe Vinagre-Hernandez | 2019-06-07 | 18-50402 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jolly, Costa, Engelhardt", "parties": "", "opinions": [{"author": "KURT D. ENGELHARDT, Circuit Judge:", "type": "010combined", "text": "Case: 18-50402 Document: 00514988291 Page: 1 Date Filed: 06/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUI... | JOLLY | COSTA | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627631/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,014 | UNITED STATES of America, Plaintiff - Appellee v. Eleazar PEREZ-MATEO, Defendant - Appellant | United States v. Eleazar Perez-Mateo | 2019-06-10 | 18-40768 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginson, Willett, Brown", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 18-40768 Document: 00514990394 Page: 1 Date Filed: 06/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FO... | HIGGINSON | WILLETT | BROWN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628014/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,015 | Lindsey HOYT, Individually, and Independently as Administrator of the Estate of Jeffery Hoyt and as Next Friend of Joel Hoyt, Evan Hoyt, and Katie Hoyt; Patrick Hoyt, Plaintiffs-Appellants, v. the LANE CONSTRUCTION CORPORATION, Defendant-Appellee. | Lindsey Hoyt v. Lane Construction Corporati | 2019-06-10 | 18-10289 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jones, Haynes, Oldham", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888694/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opin... | JONES | HAYNES | OLDHAM | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628015/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,017 | FORREST GENERAL HOSPITAL; Southwest Mississippi Regional Medical Center, Plaintiffs-Appellants v. Alex M. AZAR, II, Secretary, U.S. Department of Health and Human Services, Defendant-Appellee | Forrest General Hospital v. Alex Azar, Secr | 2019-06-10 | 18-60227 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Reavley, Elrod, Willett", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 18-60227 Document: 00514990219 Page: 1 Date Filed: 06/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United... | REAVLEY | ELROD | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628017/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,942 | UNITED STATES of America, Plaintiff - Appellee v. Ramon GARCIA-SOLIS, Jr., Defendant - Appellant | United States v. Ramon Garcia-Solis, Jr. | 2019-06-12 | 18-40307 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Haynes, Graves, Duncan", "parties": "", "opinions": [{"author": "discussion between the district judge and Garcia-Solis's counsel about what", "type": "010combined", "text": "Case: 18-40307 Document: 00514993814 Page: 1 Date Filed: 06/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS... | HAYNES | GRAVES | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628942/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,945 | GLASSELL NON-OPERATED INTERESTS, LIMITED; ACG3 Mineral Interests, Limited; Yates Energy Corporation, Plaintiffs - Appellees v. ENERQUEST OIL & GAS, L.L.C., Defendant - Appellant | Glassell Non-Operated Interests, Ltd. v. Enerquest Oil & Gas, L. L.C. | 2019-06-12 | 18-20125 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "James, Higginbotham, Elrod", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 18-20125 Document: 00514994230 Page: 1 Date Filed: 06/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT Unit... | JAMES | HIGGINBOTHAM | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628945/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,318 | Kevin HORNER; John Krakowski; Keith Bounds, Plaintiffs-Appellants Joseph Tersteeg, Intervenor Plaintiff-Appellant v. AMERICAN AIRLINES, INCORPORATED; Allied Pilots Association, Defendants-Appellees | Kevin Horner v. American Airlines, Inc., et | 2019-06-13 | 18-10036 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Jones, Dennis", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-10036 Document: 00514994878 Page: 1 Date Filed: 06/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | DAVIS | JONES | DENNIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629318/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,322 | Demetrius Dewayne SMITH, Petitioner-Appellee, Cross-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant, Cross-Appellee. | Demetrius Smith v. Lorie Davis, Director | 2019-06-13 | 18-70015 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Clement, Owen, Haynes", "parties": "", "opinions": [{"author": "PRISCILLA R. OWEN, Circuit Judge:", "type": "010combined", "text": "Case: 18-70015 Document: 00514995085 Page: 1 Date Filed: 06/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCU... | CLEMENT | OWEN | HAYNES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629322/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,473 | Ryan SISSOM, Plaintiff - Appellant, v. UNIVERSITY OF TEXAS HIGH SCHOOL; University of Texas; Beth Cooper, Principal/Director III of University of Texas High School; Steve Rosen, Legal Advisor for University of Texas Regents; Steve Walls, Superintendent of University of Texas High School, Defendants - Appellees. | Ryan Sissom v. Univ of Texas High School | 2019-06-13 | 17-50913 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 17-50913 Document: 00514995485 Page: 1 Date Filed: 06/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629473/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,769 | UMB Bank, National Association v. Berry Petroleum | 2019-06-14 | 18-40443 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-40443 Document: 00514996509 Page: 1 Date Filed: 06/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF... | STEWART | SOUTHWICK | ENGELHARDT | 1 | {"STEWART": ", Chief", "SOUTHWICK": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629769/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,016 | In the MATTER OF: LINN ENERGY, L.L.C. Debtors UMB Bank, National Association v. Linn Energy, L.L.C., Linnco, L.L.C. Linn Energy Finance Corporation Linn Energy Holdings, L.L.C. Linn Exploration & Production Michigan L.L.C. Linn Exploration Midcontinent, L.L.C. Linn Midstream, L.L.C. Linn Midwest Energy L.L.C. Linn Oper... | Umb Bank, Nat'l Ass'n v. Linn Energy (In re Linn Energy, L. L.C.) | 2019-06-14 | No. 18-40443 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Engelhardt, Southwick, Stewart", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415452/", "author_raw": ""}]} | ENGELHARDT | SOUTHWICK | STEWART | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444016/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,324 | UNITED STATES of America, Plaintiff - Appellee v. Ignacio ARELLANO-BANUELOS, Defendant - Appellant | United States v. Ignacio Arellano-Banuelos | 2019-06-17 | 17-11490 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Elrod, Higginson, Engelhardt", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-11490 Document: 00514999266 Page: 1 Date Filed: 06/17/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH ... | ELROD | HIGGINSON | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630324/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,326 | SECURITIES AND EXCHANGE COMMISSION, Plaintiff v. STANFORD INTERNATIONAL BANK, LIMITED, Defendant v. Joseph Becker; Terence Beven; Wanda Bevis; Thomas Eddie Bowden; Troy L. Lillie, Jr., Et Al, Movants-Appellants Doug McDaniel; Scott Notowich; Eddie Rollins; Cordell Haymon; Et Al, Objecting Parties-Appellants v. Certain ... | SEC. & Exch. Comm'n v. Stanford Int'l Bank, Ltd. | 2019-06-17 | 17-10663 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jones, Clement, Southwick", "parties": "", "opinions": [{"author": "EDITH H. JONES, Circuit Judge:", "type": "010combined", "text": "Case: 17-10663 Document: 00514998485 Page: 1 Date Filed: 06/17/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | JONES | CLEMENT | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630326/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,567 | Quintin Phillippe JONES, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee | Quintin Jones v. Lorie Davis, Director | 2019-06-18 | 16-70003 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Dennis, Elrod", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 16-70003 Document: 00515000359 Page: 1 Date Filed: 06/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | DENNIS | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630567/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,696 | UNITED STATES of America, Plaintiff - Appellee v. Andrew Maxwell PARKER, Defendant - Appellant | United States v. Andrew Parker | 2019-06-18 | 18-50058 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HAYNES, GRAVES, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "HAYNES, Circuit Judge:", "type": "010combined", "text": "Case: 18-50058 Document: 00515001333 Page: 1 Date Filed: 06/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FI... | HAYNES | GRAVES | HO | 1 | {"HAYNES": ", Circuit", "GRAVES": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630696/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,135 | UNITED STATES of America, Plaintiff-Appellee, v. Agustine SANCHEZ-HERNANDEZ, Also Known as Augustin Sanchez, Defendant-Appellant. | United States v. Agustine Sanchez-Hernandez | 2019-06-19 | 18-40211 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JONES, HO, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "ANDREW S. OLDHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-40211 Document: 00515001593 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FO... | JONES | HO | OLDHAM | 1 | {"JONES": ", Circuit", "HO": ", Circuit", "OLDHAM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631135/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,334 | UNITED STATES of America, Plaintiff - Appellee v. Michael Angelo ORTIZ, Defendant - Appellant | United States v. Michael Ortiz | 2019-06-19 | 17-11301 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Owen, Southwick, Higginson", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-11301 Document: 00515003208 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CI... | OWEN | SOUTHWICK | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631334/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,336 | UNITED STATES of America, Plaintiff-Appellee, v. Kelvin Lewis BREE, Defendant-Appellant. | United States v. Kelvin Bree | 2019-06-19 | 18-40360 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginson, Willett, Brown", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 18-40360 Document: 00515002494 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR ... | HIGGINSON | WILLETT | BROWN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631336/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,349 | In the MATTER OF: LINN ENERGY, L.L.C.; Berry Petroleum Company, L.L.C.; LinnCo, L.L.C.; Linn Acquisition Company, L.L.C. ; Linn Energy Finance Corporation ; Linn Energy Holdings, L.L.C. ; Linn Exploration & Production Michigan, L.L.C. ; Linn Exploration Midcontinent, L.L.C. ; Linn Midstream, L.L.C. ; Linn Midwest Energ... | Okla. State Treasurer v. Linn Operating, Inc. (In Re Linn Energy, L.L.C.) | 2019-06-19 | 18-40575 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Jones, Dennis", "parties": "", "opinions": [{"author": "EDITH H. JONES, Circuit Judge:", "type": "010combined", "text": "Case: 18-40575 Document: 00515002398 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United St... | DAVIS | JONES | DENNIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631349/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,352 | Cathy Bowles v. OneMain Financial Group, LLC | 2019-06-19 | 18-60749 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, COSTA, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "E. GRADY JOLLY, Circuit Judge:", "type": "010combined", "text": "Case: 18-60749 Document: 00515002949 Page: 1 Date Filed: 06/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE F... | JOLLY | COSTA | HO | 1 | {"JOLLY": ", Circuit", "COSTA": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631352/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,020 | Cathy J. BOWLES v. ONEMAIN FINANCIAL GROUP, L.L.C. | Bowles v. Onemain Fin. Grp., L. L.C. | 2019-06-19 | No. 18-60749 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Costa, Jolly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415456/", "author_raw": ""}]} | COSTA | JOLLY | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444020/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,974 | UNITED STATES of America, Plaintiff-Appellee v. Richard Deshawn JONES, Defendant-Appellant | United States v. Richard Jones | 2019-06-21 | 18-10590 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "WIENER, Circuit Judge:", "type": "010combined", "text": "Case: 18-10590 Document: 00515005893 Page: 1 Date Filed: 06/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631974/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,977 | Norvis HARMON, Plaintiff-Appellant v. DALLAS COUNTY, TEXAS ; Derick Evans, Defendants-Appellees | Norvis Harmon v. Dallas County, Texas | 2019-06-21 | 18-10353 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Reavley, Elrod, Willett", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-10353 Document: 00515005995 Page: 1 Date Filed: 06/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n ... | REAVLEY | ELROD | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631977/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,056 | Carl YOUNG, Plaintiff-Appellee, v. BOARD OF SUPERVISORS OF HUMPHREYS COUNTY, MISSISSIPPI, Defendant-Appellant. | Young v. Bd. of Supervisors of Humphreys Cnty. | 2019-06-21 | 18-60618 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-60618 Document: 00515006809 Page: 1 Date Filed: 06/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632056/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,876 | STEMCOR USA INCORPORATED, Plaintiff v. CIA SIDERURGICA DO PARA COSIPAR, Et Al., Defendants Daewoo International Corporation, Plaintiff - Appellant v. Thyssenkrupp Mannex Gmbh, Intervenor Plaintiff - Appellee v. America Metals Trading L.L.P., Et Al., Defendants | Stemcor USA Inc. v. Cia Siderurgica Do Para Cosipar | 2019-06-25 | 16-30984 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Graves, Higginson", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, JR., Circuit Judge", "type": "010combined", "text": "Case: 16-30984 Document: 00515010237 Page: 1 Date Filed: 06/25/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | GRAVES | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632876/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,633,290 | UNITED STATES of America, Plaintiff - Appellee v. Rosie DIGGLES; Walter Diggles; Anita Diggles, Defendants - Appellants | United States v. Rosie Diggles | 2019-06-26 | 18-40521 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Costa, Higginbotham, Jones", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 18-40521 Document: 00515011481 Page: 1 Date Filed: 06/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | COSTA | HIGGINBOTHAM | JONES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633290/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,030 | IN RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated Bon Secour Fisheries, Incorporated Fort Morgan Realty, Incorporated LFBP 1, L.L.C., doing business as GW Fins Panama City Beach Dolphin Tours & More, L.L.C. Zekes Charter Fleet, L.L.C. William Sellers Kathleen Irwin Ronald Lundy Corliss Gallo John T... | Bon Secour Fisheries, Inc. v. BP Exploration & Prod., Inc. (In re Deepwater Horizon) | 2019-06-26 | No. 17-30727 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Graves, Oldham", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415467/", "author_raw": ""}]} | GRAVES | OLDHAM | GRAVES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444030/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,633,669 | SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee v. ARCTURUS CORPORATION; Aschere Energy, L.L.C.; Leon Ali Parvizian, Also Known as Alex Parvizian; Robert J. Balunas; R. Thomas & Co., L.L.C.; Alfredo Gonzalez; AMG Energy, L.L.C., Defendants - Appellants | SEC. & Exch. Comm'n v. Arcturus Corp. | 2019-06-27 | 17-10503 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, Dennis, Willett", "parties": "", "opinions": [{"author": "CARL E. STEWART, Chief Judge", "type": "010combined", "text": "Case: 17-10503 Document: 00515013011 Page: 1 Date Filed: 06/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | STEWART | DENNIS | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633669/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,634,850 | UNITED STATES of America, Plaintiff - Appellee v. Charles Devan FULTON, Sr., Also Known as Black, Also Known as Blacc, Defendant - Appellant | United States v. Charles Fulton, Sr. | 2019-06-27 | 17-41251 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Wiener, Southwick, Costa", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-41251 Document: 00515013555 Page: 1 Date Filed: 06/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCU... | WIENER | SOUTHWICK | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4634850/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,634,852 | Oscar Ernesto MELENDEZ, Plaintiff-Appellant v. Kevin K. MCALEENAN, Acting Secretary, U.S. Department of Homeland Security; Lee Cissna, United States Citizenship and Immigration Services Director; Mark Siegl, Field Office Director, Defendants-Appellees | Oscar Melendez v. Kevin McAleenan, Acting Secy, et | 2019-06-27 | 18-20341 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Barksdale, Southwick, Haynes", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-20341 Document: 00515013200 Page: 1 Date Filed: 06/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIR... | BARKSDALE | SOUTHWICK | HAYNES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4634852/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,221 | W. M. v. C. v. William Barr, U.S. Atty Gen | 2019-06-28 | 17-60753 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, SMITH, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "REVISED June 28, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | KING | SMITH | WILLETT | 1 | {"KING": ", Circuit", "SMITH": ", Circuit", "WILLETT": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635221/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,635,446 | Waste Management of Louisiana v. River Birch, Inco | 2019-06-28 | 18-30139 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, COSTA, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n No. 18-30139\n\n\nWASTE MANAGEMENT OF LOUISIANA, L.L.C.,\n... | DAVIS | COSTA | OLDHAM | 1 | {"DAVIS": ", Circuit", "COSTA": ", Circuit", "OLDHAM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635446/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,021 | WASTE MANAGEMENT OF LOUISIANA, L.L.C. v. RIVER BIRCH, INCORPORATED Albert J. Ward, Jr. Frederick R. Heebe Highway 90, L.L.C. | Waste Mgmt. of La., L. L.C. v. River Birch, Inc. | 2019-06-28 | No. 18-30139 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415457/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444021/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,625,640 | UNITED STATES of America, Plaintiff-Appellee, v. Donald Cory MYERS, Defendant-Appellant. | United States v. Donald Myers | 2019-06-03 | 18-5099 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Griffin, White, Bush", "parties": "", "opinions": [{"author": "HELENE N. WHITE, Circuit Judge.", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0112p.06\n\n ... | GRIFFIN | WHITE | BUSH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625640/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,641 | Jane DOES 1-2, Plaintiffs-Appellees, Eva Cabrera and Brittney Halverson (17-1801); B.D. (17-1802); C.T. (17-1827), Objectors-Appellants. v. DÉJÀ VU SERVICES, INC., Fka Déjà Vu Consulting, Inc., Et Al., Defendants-Appellees. | Jane Doe v. Deja Vu Consulting, Inc. | 2019-06-03 | 17-1827 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.", "parties": "", "opinions": [{"author": "COLE, Chief Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n ... | COLE | WHITE | NALBANDIAN | 1 | {"COLE": ", Chief", "WHITE": ", Circuit", "NALBANDIAN": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625641/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,642 | Howard HOLT ; Martin Erskine, Plaintiffs-Appellants, v. CITY OF BATTLE CREEK, Defendant-Appellee. | Howard Holt v. City of Battle Creek | 2019-06-03 | 18-1981 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Guy, Clay, Griffin", "parties": "", "opinions": [{"author": "findings, this Court gives due regard to the district court's opportunity to judge the credibility of", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n... | GUY | CLAY | GRIFFIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625642/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,973 | Jane Doe v. Deja Vu Consulting, Inc. | 2019-06-03 | 17-1827 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.", "parties": "", "opinions": [{"author": "COLE, Chief Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n ... | COLE | WHITE | NALBANDIAN | 1 | {"COLE": ", Chief", "WHITE": ", Circuit", "NALBANDIAN": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625973/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,626,020 | UNITED STATES of America, Plaintiff-Appellee, v. Dean A. DOUTT, Defendant-Appellant. | United States v. Dean Doutt | 2019-06-04 | 18-3750 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Rogers, Donald, Thapar", "parties": "", "opinions": [{"author": "THAPAR, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0116p.06\n\n ... | ROGERS | DONALD | THAPAR | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626020/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,021 | John DOE, Plaintiff-Appellant, v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendant-Appellee. | John Doe v. BlueCross BlueShield of Tenn., Inc. | 2019-06-04 | 18-5897 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Guy, Sutton, Nalbandian", "parties": "", "opinions": [{"author": "SUTTON, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0115p.06\n\n ... | GUY | SUTTON | NALBANDIAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626021/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,945 | UNITED STATES of America, Plaintiff-Appellee, v. Jeffery HAVIS, Defendant-Appellant. | United States v. Jeffery Havis | 2019-06-06 | 17-5772 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Cole, Daughtrey, Moore, Clay, Gibbons, Sutton, Griffin, Kethledge, White, Stranch, Donald, Thapar, Bush, Larsen, Nalbandian, Readler, Murphy", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to... | COLE | DAUGHTREY | MOORE | 2 | CLAY; GIBBONS; SUTTON; GRIFFIN; KETHLEDGE; WHITE; STRANCH; DONALD; THAPAR; BUSH; LARSEN; NALBANDIAN; READLER; MURPHY | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626945/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
8,444,035 | United States v. Jeffery HAVIS | United States v. Havis | 2019-06-06 | No. 17-5772 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Reconsideration, Sutton", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415472/", "author_raw": ""}]} | SUTTON | SUTTON | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444035/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,627,447 | UNITED STATES of America, Plaintiff-Appellee, v. Christopher A. GANDY (17-2020); Anthony R. Gandy (18-1106); Sharon Gandy-Micheau (18-1137), Defendants-Appellants. | United States v. Sharon Gandy-Micheau | 2019-06-07 | 17-2020/18-1106; 18-1137 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Clay, Gilman, Kethledge", "parties": "", "opinions": [{"author": "RONALD LEE GILMAN, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0118p.06\n\n ... | CLAY | GILMAN | KETHLEDGE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627447/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,448 | UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Michael LYNDE, Defendant-Appellant. | United States v. Lawrence Lynde | 2019-06-07 | 18-3725 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Cook, Nalbandian, Murphy", "parties": "", "opinions": [{"author": "MURPHY, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0121p.06\n\n ... | COOK | NALBANDIAN | MURPHY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627448/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,449 | UNITED STATES of America, Plaintiff-Appellee, v. Damion D. FAULKNER, Defendant-Appellant. | United States v. Damion Faulkner | 2019-06-07 | 18-5867 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Suhrheinrich, Bush, Readler", "parties": "", "opinions": [{"author": "CHAD A. READLER, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0120p.06\n\... | SUHRHEINRICH | BUSH | READLER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627449/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,452 | Michael Adam BOOTH, Plaintiff-Appellant, v. NISSAN NORTH AMERICA, INC., Defendant-Appellee. | Michael Booth v. Nissan N. Am., Inc. | 2019-06-07 | 18-5985 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Guy, Sutton, Nalbandian", "parties": "", "opinions": [{"author": "NALBANDIAN, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0119p.06\n\n ... | GUY | SUTTON | NALBANDIAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627452/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,971 | UNITED STATES of America, Plaintiff-Appellee, v. Eric Scott RUSKA, Defendant-Appellant. | United States v. Eric Ruska | 2019-06-10 | 18-1194 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Batchelder, McKEAGUE, Nalbandian", "parties": "", "opinions": [{"author": "NALBANDIAN, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0124p.... | BATCHELDER | MCKEAGUE | NALBANDIAN | 1 | {"McKEAGUE": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627971/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,972 | Renee FAZICA, Plaintiff-Appellee, v. Zachary JORDAN, Josh Tucker, Carlos Cordova, and Mark Fletcher, Oakland County Sheriff's Deputies, Defendants-Appellants. | Renee Fazica v. Zachary Jordan | 2019-06-10 | 18-1457 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Merritt, Guy, Moore", "parties": "", "opinions": [{"author": "KAREN NELSON MOORE, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0125p.06\n\n ... | MERRITT | GUY | MOORE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627972/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,975 | Charles Brian FOX and Megan Fox, Individually and as Parents and Next Friends of Hailey Fox; Matthew Fox; Rebecca Fox ; Sarah Fox, Plaintiffs-Appellants, v. AMAZON.COM, INC., Defendant-Appellee. | Charles Fox v. Amazon.com, Inc. | 2019-06-10 | 18-5661 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Before: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.", "parties": "", "opinions": [{"author": "No. 3:16-cv-03013-William Lynn Campbell, Jr., District Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O... | CLAY | STRANCH | PEARSON | 1 | {"CLAY": ", Circuit", "STRANCH": ", Circuit", "PEARSON": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627975/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,976 | Adam KANUSZEWSKI, Et Al., Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal Biobank, Incorporated, AKA Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees. | Adam Kanuszewski v. Mich. Dep't of Health & Human Servs. | 2019-06-10 | 18-1896 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Clay, Rogers", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888692/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/... | CLAY | ROGERS | CLAY | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627976/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,336 | UNITED STATES of America, Plaintiff-Appellee, v. Timothy Ivory CARPENTER, Defendant-Appellant. | United States v. Timothy Carpenter | 2019-06-11 | 14-1572 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.", "parties": "", "opinions": [{"author": "JANE B. STRANCH, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n ... | GUY | KETHLEDGE | STRANCH | 1 | {"GUY": ", Circuit", "KETHLEDGE": ", Circuit", "STRANCH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628336/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,338 | UNITED STATES of America, Plaintiff-Appellee, v. Michael J.W. POTTER, Defendant-Appellant. | United States v. Michael Potter | 2019-06-11 | 18-5830 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Moore, Sutton, Murphy", "parties": "", "opinions": [{"type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0128p.06\n\n UNITED STATES COURT OF APPEALS\n... | MOORE | SUTTON | MURPHY | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628338/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,342 | Brian D. WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. | Brian Williams v. United States | 2019-06-11 | 17-3211 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Moore, Merritt", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888700/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinion... | MOORE | MERRITT | MOORE | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628342/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,131 | Mario Sentelle CAVIN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS; David Leach, Defendants-Appellees. | Mario Cavin v. Mich. Dep't of Corr. | 2019-06-17 | 18-1346 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Rogers, Sutton, Readler", "parties": "", "opinions": [{"author": "SUTTON, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0129p.06\n\n ... | ROGERS | SUTTON | READLER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630131/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,571 | Perley WINKLER, Petitioner-Appellant, v. Mike PARRIS, Warden, Respondent-Appellee. | Perley Winkler v. Mike Parris | 2019-06-18 | 18-5301 | U.S. Court of Appeals for the Sixth Circuit | {"judges": "Suhrheinrich, Thapar, Larsen", "parties": "", "opinions": [{"author": "SUHRHEINRICH, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0130p.06\n\n ... | SUHRHEINRICH | THAPAR | LARSEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630571/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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